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Scotland Bill

Volume 592: debated on Tuesday 21 July 1998

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9.1 p.m.

House again in Committee on Clause 27.

[ Amendments Nos. 145 and 146 not moved.]

Clause 27 agreed to.

Clause 28 [ Legislative competence]:

Page 14, line 26, leave out ("so far as") and insert ("to the extent that").

The noble and learned Lord said: In moving Amendment No. 147, I shall, with the leave of the Committee, speak also to Amendment No. 148. These are two drafting amendments which also probe to see that I correctly understand the policy which lies behind the provisions in Clause 28, and in particular the first subsection of that clause.

I understand the policy to be that, if there is conflict between any of the provisions of an Act of the Scottish parliament and the legislative competence of the parliament—in other words, if those provisions are outside the legislative competence—only the provisions that offend against the definition of that legislative competence will be affected and will fall to be quashed by the courts. Putting it another way, those provisions that are found to be outwith the legislative competence can be severed from the competent provisions of the Act of the Scottish parliament and it would not be necessary for the whole of such an Act to fall merely because one or more of its provisions offended against the provisions of Clause 28.

What I would imagine happening in such a situation is that, among any other orders that it may be necessary to issue, the court would pronounce an order quashing or setting aside the offending provision or provisions. I should be most grateful if the Minister would confirm that my understanding of the position is correct in so far as it relates to Acts of the Scottish parliament itself.

A related issue concerns the vires of subordinate legislation made by the Scottish executive and confirmed, where appropriate, by the Scottish parliament. This is a matter where the competency is dealt with by Clause 50(2) of the Bill. This is again an issue which could profitably be clarified at this stage. If any provisions of subordinate legislation made by a member of the Scottish executive are outwith the executive's competence—and this could arise because such provisions would be outwith the legislative competence of the parliament had the same provisions been included in an Act of the Scottish parliament—does that mean that the whole instrument of subordinate legislation falls, or is it only the offending provisions that are quashed and not enforced? It would be most helpful if the Minister could confirm the position.

It will be appreciated that Acts of the Scottish Parliament and secondary legislation made by the Scottish executive will be open to challenge on other grounds. Not all questions of vires will fall to be

determined by reference to Clause 28 of the Bill. It would therefore also be helpful if the Minister could say whether the same approach would apply. If the subordinate legislation could be challengeable on other grounds, would the whole instrument fall, or would it be only the offending provisions that would fall?

In raising these matters, I assume that there is no intention on the part of the Government to restrict the grounds upon which subordinate legislation made by the Scottish executive may be challenged because it is outwith the devolved competence of the executive. I seek an assurance that it is no part of the intention of the Bill's provisions to interfere in any way with either the existence or extent of the exclusive supervisory jurisdiction exercised by the Court of Session, a matter which we may well require to look at in greater detail at later stages of the Bill. It would, however, be helpful if that could be confirmed at this stage as part of the response to Amendments Nos. 147 and 148. I beg to move.

The noble and learned Lord suggested that Clause 28(1) might be interpreted as meaning that if one provision of an Act of the Scottish parliament is outside the legislative competence of the Scottish parliament then the whole of that Act is invalid. The noble and learned Lord's Amendments Nos. 147 and 148 seek to clarify that it is only the specific provision in question which is invalid and not the whole of the Act.

However, that is what Clause 28(1) already provides. It says that,
"An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament".
It does not say that an Act of the Scottish parliament is invalid if any of its provisions is outwith its legislative competence. An Act is invalid only "so far as" any provision is outwith the legislative competence of the parliament.

The wording of the clause has of course been considered very carefully, as has the amendment, and I am advised that the only way in which the clause can be interpreted is that it is the particular provision in question which is invalid and not the whole Act which is invalid. I must say that as a layman that is how I would read the clause. We do not believe that the form of words proposed by the noble and learned Lord—which would say "to the extent that" rather than "so far as"—would be any clearer.

I shall try to answer some of the direct questions put by the noble and learned Lord, Lord Mackay of Drumadoon. Where a provision of an Act of the Scottish parliament or of subordinate legislation is ultra vires, it is only that provision, to the extent to which it is incompetent, that is ultra vires and not anything surrounding it.

I hope that that reassures the noble and learned Lord that Amendments Nos. 147 and 148 are not necessary, though I accept his positive intentions in proposing them. However, the noble and learned Lord actually went wider than his two amendments in posing some of the questions in relation to the Court of Session. I should like to return to that at the appropriate part of the Bill or in some other way.

I am grateful to the noble Baroness for her full reply, which completely meets the basic issue which I raised with these two amendments. The supplementary question which was tucked in as an extra was a difficult one and I can well understand why she would not wish to give a full response at this stage. However, it would be exceedingly helpful if a response could be sent by letter before we reach the subsequent clauses, in particular Clauses 92, 93 and that part of the Bill. It will be important there to have the Government's thinking before us as to the extent, if at all, it is intended that the Bill should interfere with the supervisory jurisdiction of the Court of Session.

In the light of that helpful response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[ Amendment No. 148 not moved.]

Page 14, leave out line 33.

The noble Lord said: In moving Amendment No. 149, I shall speak also to Amendments Nos. 151, 153, 160, 161, 164, 165, 166A, 167, 167A to 167C, 168, 168A, 169, 169ZZA, 169ZA, 169A, 172, 173, 182, 204, 209, 259, 291A and 294.

The purpose of these amendments is to ensure that the Scottish parliament can legislate effectively about things which the White Paper intended should be devolved. At the same time, the amendments seek to ensure that there are adequate safeguards for those matters which the White Paper intended should be reserved.

The purpose of the amendments is essentially to clarify the operation of the legislation in this vital area. They do not represent a change of policy but they are rather complex and involve some quite difficult concepts. That, I am afraid is unavoidable. It is important, however, that Members of the Committee understand exactly what it is we are proposing and why and I hope that the Committee will bear with me therefore in what is a detailed explanation and exemplification of these government amendments.

The White Paper indicated that it was proposed to define the legislative competence of the Scottish parliament by listing the matters which were reserved. Everything not specifically reserved would be devolved. This approach is given effect to in the Bill by providing in Clause 28(2)(c) that the Scottish parliament can make laws except where the provision "relates to" the reserved matters listed in Schedule 5. In interpreting what is meant by "relates", it is intended that the courts should rely upon the respection doctrine which they developed in dealing with cases arising from the Commonwealth constitutions and the Government of Ireland Act 1920. The classic statement is found in the words of Lord Atkin in Gallagher v. Lynn in 1937 where he stated:

"It is well established that you ought to look at the true nature and character … the pith and substance of the legislation. If, on the view of the statute as a whole, you find that the substance of the legislation is within the express powers, then it is not invalidated if incidentally it affects matters which are outside the authorised field".

In other words, it is intended that any question as to whether a provision in an Act of the Scottish parliament "relates to" a reserved matter should be determined by reference to its "pith and substance" or its purpose and if its purpose is a devolved one then it is not outside legislative competence merely because "incidentally it affects" a reserved matter. A degree of trespass into reserved areas is inevitable because reserved and other areas are not divided into neat watertight compartments.

Clause 28(4) and (5) were intended to achieve this. Clause 28(5) provides that a provision does not relate to reserved matters merely because it makes provision for purposes relating to devolved matters which incidentally affects reserved matters. However, there may be some doubt as to whether this provision is sufficient because it does not make it clear that in determining whether a provision relates to a reserved matter the court should determine this by reference to the purpose of the provision in question. In the absence of such a provision, it is possible that the courts would apply a literal approach and hold that a provision "relates" to a reserved matter merely if it affects it. If the courts were to adopt this approach, this would severely fetter the Scottish parliament's ability to legislate about subjects which are, in terms of the White Paper, to be devolved.

For example, the White Paper intended that pollution control should be devolved. However, an Act of the Scottish parliament containing provisions about water pollution from coal-mines or dust from open-cast coal-mining would affect the reserved matter of coal-mining. If the courts were to apply a literal approach, they could hold that these provisions related to the reserved matter and would therefore be beyond the legislative competence of the Scottish parliament. This would make a nonsense of the devolution of pollution control. The same point applies, for example, to planning or local government or even the courts and the administration of justice.

Amendment No. 153 is designed to solve this problem by providing expressly that any question as to whether a provision in an Act of the Scottish parliament "relates to" a reserved matter is to be determined by reference to its purpose. The courts can determine that a provision is for a permitted purpose, even if, as an ancillary matter, it affects reserved matters. In ascertaining the purpose of the provision, the courts are required to have regard, among other things, to its effect in all the circumstances. In my example of pollution control, the courts would take into account that the pollution control provision had an effect upon the reserved matter of coal-mining but may nevertheless consider that its purpose was about pollution control and not about coal-mining.

In the vast majority of cases the ancillary effects of such provisions upon reserved matters are likely to be minor but in some cases they could be significant.

Whether the effect of a provision on reserved matters is minor or significant, if it is to be within the powers of the Scottish parliament it must in every case satisfy the test that its purpose is a devolved one. The Gallagher case which I mentioned earlier provides a very good illustration of how substantial an incidental effect can be. Northern Irish legislation about milk was found to be for the lawful purpose of promoting the health of the inhabitants of the Province, even though it had a substantial effect upon the reserved matter of cross-border trade by preventing such trade in milk.

An Act of the Scottish parliament reorganising local government would not be possible without ancillary effects on the functions of local authorities which concern reserved matters such as weights and measures, health and safety at work, data protection or the administration of housing benefit. Such legislation could have significant effects on the way in which the relevant services are administered, but they might be purely ancillary to local government reorganisation. The Scottish parliament should be able to legislate about which tier in a system of local government would administer these matters, but not to alter, for example, the rules on the administration of social security benefits, the funding of those benefits, or entitlements or specific duties of local government about reserved matters. The same point also applies in the case where the Scottish parliament amends the law of criminal evidence. This could have a significant and beneficial effect on the confiscation of drug trafficking proceeds, which is a reserved matter.

The result of the purpose test is that an individual provision whose purpose is reserved will be outside competence. However, another result is that there might conceivably be a provision which appears to deal entirely with a reserved matter but which can nevertheless be regarded as being within competence.

This might arise, for example, if there is an Act of the Scottish parliament about a devolved matter which omits to make a necessary consequential amendment to a reserved enactment. It would be possible for an Act of the Scottish parliament simply to make that missed consequential. By itself, it would appear to relate to a reserved matter but, when read in the context of the prior ASP, it can be seen to be for the devolved purpose.

Clearly, it is not the intention that these ancillary effects upon the law on reserved matters should be greater than necessary. Amendment No. 151 to Clause 28, together with Amendments Nos. 167 to 169 to Schedule 4, therefore erect a test in addition to the "purpose test" in Amendment No. 153. Its effect is that the Scottish parliament will be able to modify the law on reserved matters but only where the modifications are incidental to, or consequential on, provision which does not relate to reserved matters, and they do not have a greater effect on reserved matters than is necessary to give effect to the purpose of the provision. Therefore, if there was a way for the Scottish parliament to complete its legislative task without making modifications which have an effect on reserved matters, or if that is not possible by making modifications which have a lesser effect on reserved matters, then it would be required to take that route for otherwise it would be acting

ultra vires. Provisions which seek to define the law in areas where there is no existing enactment or case law will nevertheless be modification of the law and will be subject to the additional test and to the powers of intervention in Clauses 33 and 54.


"the law on reserved matters",

it is intended to mean the law which is about a reserved matter rather than, for example, planning law, which, although devolved, may apply to a reserved matter. The amendments therefore define the law on reserved matters as enactments and rules of law whose subject matter is reserved by Schedule 5. We recognise, of course, that it is important to ensure that the Scottish parliament can legislate on the general rules of Scots private law and criminal law across the board and without fragmenting the general principles which distinguish Scots law as a separate system of law. The new test in Schedule 4 applies generally. In the case of Scots private and criminal law, however, it applies only to certain specified aspects of private law and to the rules of Scots private and criminal law which are special to reserved matters—those which result in a distinct and separate treatment of a reserved matter. In the latter case, the rules will include not only those which exist at present, but also any private or criminal law provisions in future Westminster legislation which are special to reserved matters and which would, of course, supersede to that extent any general provision of Scots private law.

Examples of provisions of Scots private law and criminal law which are special to reserved matters are, first, Section 90 of the Copyright, Design and Patents Act 1988 which categorises copyright as moveable property and provides that an assignation of copyright is not effective unless it is in writing signed by or on behalf of the assignor. This is a special rule of Scots private law on a reserved matter designed to protect the interests of an owner of copyright; secondly, in the case of betting, gaming and lotteries, the rule that gaming contracts cannot be enforced on the basis that they are sponsiones ludicrae; and, thirdly, the provisions of the Proceeds of Crime (Scotland) Act 1995 which make special provisions about confiscating the proceeds of drug trafficking.

It would be inappropriate for the Schedule 4 test to apply to general provisions of Scots private or criminal law which reflect or are the application of their general principles or rules; for example, the rules about how a person may sign a document under Scots law, which may apply both to reserved and to devolved areas. However, Amendment No. 153 to Clause 28 in effect retains the existing test in Clause 28(3) that it will be within competence for the Scottish parliament to modify the Scots private or criminal law as it applies to reserved matters only if the purpose of the provision is to make the law in question apply consistently to reserved and to devolved areas. The courts would, of course, have regard to the effect of such a provision when assessing its purpose.

The amendments include a provision to ensure that the necessity test for effect on reserved matters is judged by reference to the legislative powers of the Scottish parliament. Thus, the fact that a consequential provision might be given effect by a Westminster Act or by an order made by a Minister of the Crown under Clause 95 of the Bill will not affect what is considered to be "necessary" for the purposes of this test. Clearly it is sensible to allow the Scottish parliament to complete its legislative task.

There are also a number of related amendments (Amendments Nos. 243 to 247 and 262 to 267) to Clauses 33 and 54, to which we will come when we reach those clauses.

As I said at the outset, these are essentially technical amendments designed to ensure that the Scottish parliament is not hamstrung from the start by a literal interpretation of the test of its legislative competence. However, I recognise that they are substantial and I hope that my explanation has been helpful. They do not represent any change of policy. The amendments are, however, vital to deliver the policy for which the Scottish people voted last September. Of course, we are testing the effect of the new approach on the definitions of reserved matters in Schedule 5 and it is possible that we shall table further technical amendments to Schedules 4 and 5 at Report stage as a result.

A number of minor and technical amendments are include in the group. These clarify the wording of Clauses 28, 50 and 54 and modify Schedules 4 and 5 in consequence of the amendments I have just described and amendments made in another place. In addition, there is an amendment to allow Schedule 4 to be modified by Order in Council in the same way as Schedule 5. I beg to move.

I must point out that if Amendment No. 149 is agreed to, I cannot call Amendment No. 150.

9.30 p.m.

I rise to speak in the hope that the Minister understands his speech as well as those who wrote it. We do not believe that there is any evil intent. As far as my limited ability goes, I cannot find any evil intent, but I am sure that if there is any, one of the twin Lords Mackay will find it. In the meantime, I should be interested to hear what else is said on this amendment.

I regard this clause and these amendments as the most important part of this legislation. I doubt if there is serious dispute about that. It is essential that the limitations on the powers of the Scottish parliament are clearly, precisely and simply expressed. If not, the Scottish parliament will not have the confidence to know what it can and cannot do. Its work will be delayed by repeated attacks on the competence of its work in the courts and elsewhere. That will lead to a sense of frustration and despair which may have disastrous consequences. This particular provision must be drafted with immense simplicity and clarity.

I do not believe that there is any dispute about the end object to be achieved. There are perhaps three possibilities. A measure may be proposed that is concerned wholly with a devolved matter. There is no problem about that. A measure may be proposed that is concerned wholly with a reserved matter. There is no problem about that. The only other category is a measure that is concerned in part with a reserved matter and in part with a devolved matter. The solution that has been adopted—I do not have any dispute with it—is to determine its primary element. If it is merely a consequential effect of a reserved matter, it is properly within the competence of the Scottish parliament. That is the substance of what is sought to be achieved. I should like to see that expressed as clearly and simply as possible.

I was glad that the former three provisions disappeared, in particular subsection (5) which I found utterly impenetrable. As far as I could follow it, it made sense until its penultimate line but the last part of it led me into Alice in Wonderland. I remain unpersuaded that the provisions that are proposed to replace it are wholly satisfactory.

I start with Amendment No. 153. The test that is sought to be introduced under this amendment is purpose. I suggest that that test is too vague. It refers to
"the purpose of the provision, having regard (among other things) to its effect in all the circumstances".
First, that is too uncertain a standard by which to achieve the required confidence. How does one find the purpose? Where is the limit on the circumstances to which one has regard? Secondly, I suggest that the reference to "purpose" is not in point. My understanding, when first reading the 'amendment, was that if the Scottish parliament decided to adopt a measure with the purpose of discouraging crime—something that would be within its competence—and then realised that the supply, distribution and possession of certain drugs was an important feature that encouraged crime, it would be entitled to legalise cannabis. Yet that is, of course, interfering with the reserved matter—the Misuse of Drugs Act 1971. But if the test is "purpose", then it is done with the purpose which is within its competence. I am not sure that purpose is the proper test.

Thirdly, I suggest that the proper test is the substance of the subject matter. Indeed, to take the quotation from Gallagher, which the Minister mentioned, it is the pith, substance and nature of the matter to be regarded, not the purpose. Purpose, to my mind, is not the same as the pith and substance. So I am uneasy about the proposed new subsection (3).

When one comes to the next part of the amendment (subsection (3A)) one still has the reference to "purpose", but it brings in the further concept of consistency. I am not persuaded at the moment that it is necessary to embark upon questions of consistency, if one is merely concerned to deal with the cases where a provision may relate both to reserved and devolved matters.

How will that work? Let us suppose that the Scottish parliament proposed to standardise all public holidays throughout Scotland. That presumably would be within its competence. Within the course of that, it would want to fix the date of Easter. That is a reserved matter. But, provided that it does it consistently—that is to say, it fixes all the public holidays—presumably it can do it. Is that what is intended? Again, let us suppose that it required to make provision for a single tribunal to set proper professional standards. It would not be allowed to do that under the provisions for accountants, doctors and actuaries. But if it made it to apply to all professions in Scotland—teachers and lawyers as well as accountants, doctors, actuaries and dentists—could it do it because it is done consistently throughout the whole sphere? I have an anxiety that that provision will lead to more trouble than benefit.

Amendment No. 169 is the other important amendment in this group. Here one finds in subsection 3B the provision dealing with incidental matters where there is an overlap between devolved and reserved matters. I welcome that provision.

I am not so confident about the necessity for subsection 3A. May it not just be obscuring what can otherwise can be put simply and clearly? Subsection 3A(1) provides:
"The law on reserved matters shall not he modified".
But Schedule 4, paragraph 4 already says that clearly. Then subsection (2) seeks to define "the law on reserved matters". Is that necessary because Clause 28(2)(c), explaining what the competence is, says that the parliament does not have competence in a provision which relates to reserved matters? Of course the reserved matters cover matters of statute and of common law. That seems, as I see it, to be sufficient.

Subsection (3) introduces the matter of specialty, and if that was where it stopped, then it might be useful. But what concerns me is that the rest of that subsection has been plucked out of Schedule 5 and thrust into Schedule 4, and that seems to me to be unfortunate. There is a distinct structure here: Schedule 4 deals with things that cannot be amended; Schedule 5 lists the things which cannot be the subject of legislation by a Scottish parliament. Surely it was better to have the two matters referred to in subsections (3) and (4) in Schedule 5, where they used to be, rather than thrust into the amended Schedule 4.

I touch only on matters of importance. If we are dealing also with Amendment No. 169A, I wish to express two matters of anxiety. The amendment gives the power to restate the law with modifications, and to repeal. It may be necessary to provide for that, but there is a danger. It is difficult to restate the law without changing its meaning. One is dealing here with matters which may be of concern to the United Kingdom Parliament. That provision could involve the reorganising, rewriting or renumbering of sections in Acts of the United Kingdom. That would add to the complexity of a statute book which is sufficiently complex.

I make these observations with a view to being helpful. I am concerned to see whether we can secure a simple, precise and clear solution to a problem which I think everyone agrees exists. I respectfully suggest that much of the material here could be thinned out. I would welcome an indication from the Minister that he would give further consideration to the successful drafting of this admittedly difficult but critically important provision.

I noted that the Minister did not indicate that he would be happy to take any questions on what he had read out. Having listened to the important issues raised by the noble and learned Lord, Lord Clyde, his reticence is understandable.

We are all agreed that this is an important area of the Bill. I welcome the fact that the Government have, to some extent on their own initiative, taken the opportunity to think again about the terms in which Clause 28 is currently drafted. As I recall, this was not a matter that was discussed at any length, if at all, in another place.

I noted that the Minister stated that it was possible that further amendments would be brought forward at Report stage. If that proves to be the case, it would be extremely helpful if they could be tabled as early as possible and, if possible, a letter setting out in advance the purpose of the amendments would be of assistance. In striving to understand certain of these amendments in preparation for this evening's debate, time and again I came back to the fact that I was unaware what problem the Government had detected in Clause 28 as currently drafted. It is only if one is aware of the problem that the amendment is designed to meet that one can address the secondary, but equally important, question as to whether the problem is met by the proposed amendment.

With the greatest of humility and respect, I agree with every point that the noble and learned Lord, Lord Clyde, raised. I tentatively pose a number of other questions, to which I hope the Minister will respond. While it is entirely a matter for him, I suspect that a considered response sent in writing would be the way forward, and one which, by one means or another, we can read into the debates at Report stage. Clearly when lawyers come to construe the Scotland Act in the years ahead, the speech that the noble Lord, Lord Sewel, made will be one of the most important parts of Hansard to which they will have regard.

As regards Amendment No. 153, I invite the Minister to address what happens if the courts are of the view that the legislation has two purposes and one of them cannot be set aside as being an ancillary purpose, and one of these purposes is within the legislative competence of the Scottish parliament and one is clearly outwith. It may well be that there is a fourth situation in addition to the three which the noble and learned Lord, Lord Clyde, identified earlier. I have some difficulty as to why one should have regard to the provision's effect in seeking to determine what a provision's purpose is. One is almost encouraged to ask: is that not an instance of putting the cart before the horse? Look at what the provision achieves and then work out what its purpose is intended to be—because if the purpose is not achieved, what then?

I should be grateful if the noble Minister could confirm whether the new subsection 3A is intended to replace the existing subsection (3) of Clause 28. If so, I should welcome his clarification of how the provisions of the new subsection 3A have a different purpose and indeed a different effect from those currently set out in Clause 28(3).

The next amendment I shall mention briefly is No. 165, which I welcome, subject to the question of a modification which we will turn to in a later grouping. Moving to Amendments Nos. 167B and 167C, which deal with the relationship between this Bill and the Human Rights Bill, I invite the Minister to address the point of why the reference to Section 12 of the Human Rights Bill is being removed—that is the clause in the Bill which deals with self-expression. More important, I ask why reference is being made to paragraphs 2, 3, 4, 5 and 6 of Schedule 2 of the Human Rights Bill, which, as the Minister is no doubt aware, deal with certain provisions for the making of remedial orders. I do not understand why they have any relevance to the making of primary legislation by the Scottish parliament.

Of all the amendments to which the noble and learned Lord spoke, Amendment No. 169 is the one that I found the most difficult to understand. I agree with what the noble and learned Lord, Lord Clyde, said, that a serious question arises as to whether the proposed subsection 3A is necessary. But, if it is, I reinforce the point that has been made; namely, that it is desirable that this matter should be expressed as simply as possible. I fully accept that one can sometimes err on the side of simplicity and end up achieving a result which is not what parliament intended. On the other hand, members of the public, and indeed members of the parliament, in the first few years will have regular recourse to the provisions of the Act to see what their legislative powers are. If they experience as much difficulty in understanding the provisions incorporated in Amendment No. 169 as I do, and as the noble and learned Lord, Lord Clyde, also seems to do, it can be anticipated that problems may lie ahead.

Finally, I turn to Amendment No. 169A, which deals with the question, among other things, of the restatement of the law by means of consolidation Bills. I would like the Minister to assure the Committee that the amendment is framed in terms which the Scottish Law Commission and the Law Commission in England are satisfied would enable the consolidation of legislation to proceed as it does at present. In other words, in addition to merely restating the law, will they be allowed to take account of amendments to the law, supported by Law Commission recommendations and in other technical respects, in which the absolute rule against making new law in consolidation is to some extent modified, subject as it is in this Parliament to a Joint Committee chaired by one of the Lords Appeal in Ordinary?

In the early years of the Parliament, it will be most important for the law to be consolidated as quickly and effectively as resources permit. When one parliament is amending law which was made by this Parliament, it will be even more difficult for members of the public to discover what the statute law currently is. Consolidation is one way of addressing that issue. We wish to be sure that nothing in either Clause 28 or Schedule 4 should prevent such a process taking place.

As I said at the outset, I welcome the amendment. I cannot begin to suggest that I fully took on board everything the Minister said. He set some difficult homework for the Summer Recess; homework in respect of which I suspect I might seek assistance from others. I anticipate that we shall return to the matter on Report, I hope in a thoroughly constructive manner.

I speak briefly in support of the points made by the noble and learned Lords, Lord Clyde and Lord Mackay of Drumadoon. Clearly, the amendments will need to be studied with great care in the light of the points which have been made. I speak only to make two brief suggestions. The first relates to Amendment No. 153, which deals in the new subsection (3) with the purposes of the provision. These days, the courts are well used to interpreting statutes by references to the purpose of the statute. There is sometimes a debate as to whether the purposive approach is the right one to adopt. Sometimes the courts prefer to adopt a literal approach. Plainly, the intention is that the purposive approach should be adopted. It might be enough simply to stop at that point and delete the words from "having regard to" to the end of the subsection. It introduces material which simply complicates a fairly straightforward provision.

The second point relates to Amendment No. 169A. I do not wish to trivialise the debate, but it seems to me, looking at paragraph 13, that the idea of an Act changing the name of a judge is a little strange. I believe that the aim is the possibility of changing the name of the office held by a judge. It might be happier to insert the words,
"the office held by any judge, chairman or officer of a court or tribunal",
in order to make that position clear.

I would like to raise a question on Amendments Nos. 166A and 291 B. Amendment No. 166A provides that the Private Legislation Procedure (Scotland) Act shall not be modified. I am thinking of the position in which on so many occasions I have been a Parliamentary Commissioner dealing with opposed private legislation. With that in mind, I believe that the matter can satisfactorily be devolved to the Scottish parliament. However, Clause 88, which is set out under the heading of "Private legislation", deals with pre-commencement enactments. I am somewhat mystified as to whether Amendment No. 166A does not to some extent contradict the provisions in Clause 88.

Moreover, I also wonder why subsection (3) of Clause 88 says:
"Section 49 shall not apply in relation to the Private Legislation Procedure (Scotland) Act 1936",
because Clause 49 deals with the general transfer of functions to Scottish Ministers. I should have thought that that was an entirely different subject, but quite an important point.

On the same amendment—namely, Amendment No. 166A—can the Minister say why the provision is not being changed? My recollection from experience is that the final stages of opposed Private Bills go to a committee of both Houses at Westminster. Indeed, that involves the House of Lords. I have chaired such a joint committee, and I do not believe that the situation has changed. Are the Government maintaining the House of Lords in this piece of legislative procedure, but not in any other?

I believe that we have had a thoughtful, valuable and most helpful series of contributions to this debate from noble Lords and noble and learned Lords. We are all agreed that this is one of the most important parts of the Bill and that it does indeed deserve full and proper scrutiny.

Clearly, as the Minister responsible for the Bill, I am aware that whatever comments I make on this occasion have to be considered both deliberate and weighed. Therefore, I shall not reply at this stage to many of the points made by noble Lords and noble and learned Lords. However, because of the importance of this particular part of the Bill, I make the offer to have discussions with Members of the Committee who feel that we can make further improvements to these clauses. As I say, I shall take those points away while making that offer of discussion.

However, I can deal with the point on private legislation raised by the noble Earl, Lord Balfour, and the noble Baroness, Lady Carnegy. Amendments Nos. 166A and 291A bring the treatment of the Private Legislation Procedure (Scotland) Act 1936 into line with that of other enactments, which are to be protected from modification by the Scottish parliament, by adding a provision to that effect in Schedule 4 and deleting Clause 88(3), which will become redundant. Following devolution, it is intended that the Scottish parliament will be able to make its own provision in relation to private legislation as far as relates to devolved matters. By virtue of these amendments, the parliament will not be able to modify the 1936 Act and ministerial functions will not transfer to the Scottish Ministers. Private legislation under the 1936 Act will continue to be a matter for Westminster and UK Ministers, but it is expected that a convention will develop that they will normally deal with devolved matters only with the consent of the Scottish parliament. I think that is the kind of approach that we have tried consistently to adopt when these kind of issues arise.

I repeat what I have already said. Although these are technical amendments, they are incredibly important technical amendments which seek to place in legislation, and to define legislatively, what I think we all recognise is an incredibly difficult provision. Because of that importance I am happy to take further in discussion the concerns of noble Lords and noble and learned Lords. I think the Committee will realise that at this stage I have to refrain from saying anything further of substance.

On Question, amendment agreed to.

[ Amendment No. 150 not moved.]

10 p.m.

Page 14, line 34, at end insert—

("(cc) it is in breach of the restrictions in Schedule 4").

On Question, amendment agreed to.

[ Amendment No. 152 not moved.]

I must point out to the Committee that if Amendment No. 153 is agreed to, I cannot call Amendments Nos. 154 to 158 inclusive.

Page 14, line 40, leave out subsections (3) to (5) and insert—

("(3) For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (3A), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.

(3A) A provision which—

  • (a) would otherwise not relate to reserved matters, but
  • (b) makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters,
  • is to be treated as relating to reserved matters unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise.").

    On Question, amendment agreed to.

    [ Amendments Nos. 154 to 159 not moved.]

    Page 15, line 10, leave out ("that competence") and insert ("the legislative competence of the Parliament").

    Page 15, line 14, leave out subsection (7).

    On Question, amendments agreed to.

    I beg the Committee's pardon. I should have given the warning on Amendment No. 161 that if that amendment was agreed to, I could not call Amendments Nos. 162 or 163.

    [ Amendments Nos. 162 and 163 not moved.]

    I must point out to the Committee that if Amendment No. 165 is agreed to, I cannot call Amendment No. 166.

    Page 15, line 18, leave out ("so") and insert ("in such a way").

    Page 15, line 20, leave out subsection (9).

    On Question, amendments agreed to.

    [ Amendment No. 166 not moved.]

    On Question, Whether Clause 28, as amended, shall stand part of the Bill?

    I wish to raise a point which I had hoped to raise in the group of amendments which is disappearing off the dyke like snow in the month of June. I think I have one chance left to raise this point, but in case I lose that chance I shall raise the point now. Why in this Bill have the draftsmen introduced the term "modification of the law"? As far as my researches have indicated—I fully confess they are not as extensive as they might have been—that is not a term currently used in public general statutes when one is talking about legislation which repeals or amends existing legislation. Nor is it found in judicial authorities in so far as I have researched that, and nor—very importantly—is it found in legal textbooks dealing with statutory construction. If this new term is to be introduced, I believe we are entitled to an explanation of that. That is my purpose in speaking at this point.

    I shall try to give an answer as so many of these amendments were overtaken by events and I think we have all been caught slightly by surprise. The term "modify" has been used quite deliberately in this Bill so that, in the case of enactments, the various restrictions on the competence of the Scottish parliament to modify aspects of the law apply to any change to the effect of an enactment, for example, by a gloss placed on its interpretation by another enactment, not just those modifications which involve textual amendments. It is therefore felt that narrowing these provisions to apply only to textual amendments—which is the effect that we believe the use of the word "amendment" and not "modify" would produce—would subvert their purpose. I do not know whether that provides the noble and learned Lord with an adequate reply, but that is why the word "modify" is used. We believe that it is preferable to the word "amend" or "amendment".

    I am grateful to the noble Baroness for giving me that answer at an unexpected point in tonight's debate. I shall reflect on her remarks. I suspect that I may wish to write to the Minister on this matter, as it is of some significance. We are introducing a new term and we must be clear as to its meaning. On that basis, I withdraw my opposition to Clause 28.

    Clause 28, as amended, agreed to.

    Schedule 4 [ Enactments protected from modification]:

    I must point out that if Amendment No. 169A is agreed to, I cannot call Amendments Nos. 170 and 171.

    Page 62, line 10, at end insert—

    (" Private Legislation Procedure (Scotland) Act 1936

    .The Private Legislation Procedure (Scotland) Act 1936 shall not be modified.").

    Page 62, line 20, leave out ("28(2)(b)") and insert ("28(2)(cc)").

    Page 62, line 22, at end insert—

    (" Local Government, Planning and Land Act 1980

    . Paragraphs 5(3)(b) and 15(4)(6) of Schedule 32 to the Local Government, Planning and Land Act 1980 shall not be modified.").

    Page 62, line 25, leave out ("sections 12 and 20 or) and insert ("section 20 of, and paragraphs 2 to 6 of Schedule 2 to,").

    Page 62, line 26, leave out ("those sections") and insert ("that section or those paragraphs").

    Page 62, line 28, leave out ("28(2)(b)") and insert ("28(2)(cc)").

    Page 62, line 33, leave out ("and 14 to 17") and insert (", 14 to 17 and 22").

    Page 62, line 33, at end insert—

    (" Law on reserved matters

    3A.—(1) The law on reserved matters shall not he modified.

    (2) In this paragraph, "the law on reserved matters" means—

  • (a) any enactment the subject-matter of which is a reserved matter and which is comprised in an Act of Parliament or subordinate legislation under an Act of Parliament, and
  • (b) any rule of law which is not contained in an enactment and the subject-matter of which is a reserved matter.
  • (3) Sub-paragraph (1) applies in relation to a rule of Scots private law or Scots criminal law (whether or not contained in an enactment) only to the extent that the rule in question is special to a reserved matter or the subject-matter of the rule is—

  • (a) interest on sums due in respect of taxes or excise duties and refunds of such taxes or duties, or
  • (b) the obligations, in relation to occupational or personal pension schemes, of the trustees or managers.
  • (4) Sub-paragraph (3)(b) extends to cases where liabilities under orders made in matrimonial proceedings, or agreements made between the parties to a marriage, are to be satisfied out of assets of the scheme.

    (5) Sub-paragraph (1), read with section 28(2)(cc), is to be disregarded for the purpose of determining whether the exercise of any function (other than a function of making, confirming or approving subordinate legislation so far as it makes modifications to which that sub-paragraph applies) is within or outside devolved competence.

    (6) In this paragraph "enactment" includes an enactment whenever passed or made.

    3B.—(1) Paragraph 3A does not prevent an Act of the Scottish Parliament making modifications which—

  • (a) are incidental to, or consequential on, provision made (whether by the Act in question or another enactment) which does not relate to reserved matters, and
  • (b) do not have a greater effect on reserved matters than is necessary to give effect to the purpose of the provision.
  • (2) In determining for the purposes of sub-paragraph (1)(b) what is necessary to give effect to the purpose of a provision, any power to make laws other than the power of the Parliament is to be disregarded.").

    Page 62, line 37, at end insert ("and paragraph 4(1) and (2) of Schedule 2").

    Page 63, line 9, leave out from beginning to ("and") in line 10.

    Page 63, leave out lines 20 to 41 and insert—

    ("11.—(1) This Schedule does not prevent an Act of the Scottish Parliament—

  • (a) restating the law (or restating it with such modifications as are not prevented by this Schedule), or
  • (b) repealing any spent enactment.
  • (2) For the purposes of paragraph 3A, the law on reserved matters includes any restatement in an Act of the Scottish Parliament, or subordinate legislation under such an Act, of the law on reserved matters if the subject-matter of the restatement is a reserved matter.

    12. This Schedule does not prevent the operation of any provision of the Interpretation Act 1978.

    13. This Schedule does not prevent an Act of the Scottish Parliament amending any enactment (including this Act) by changing the name of—

  • (a) any court or tribunal or any judge, chairman or officer of a court or tribunal,
  • (b) any holder of an office in the Scottish Administration which is not a ministerial office or any member of the staff of the Scottish Administration,
  • (c) any register,
  • in consequence of any provision made by or under an Act of the Scottish Parliament.").

    On Question, amendments agreed to.

    Schedule 4, as amended, agreed to.

    Page 63, line 41, at end insert—

    ("(3) Notwithstanding the provisions of sub-paragraphs (1) and (2), an Act of the Scottish Parliament may not amend section 89 of this Act.").

    The noble and learned Lord said: Once again, I have a slight problem in that my Amendment No. 171 has disappeared. Under that amendment I had sought to raise a very important issue; namely, whether or not an Act of the Scottish parliament could competently amend the provisions of Clause 89 of the Bill, dealing with the procedures for the appointment and removal of judges. The clause was amended when the Bill was in another place. The contents of the clause were discussed by the noble and learned Lord, Lord Hope, at Second Reading, and the noble and learned Lord, Lord McCluskey, touched on the importance of the independence of the judiciary in view of the important role it will have to play in ensuring that the devolution settlement works.

    If the matter has troubled those in another place, it seems that the clause should be improved on from the terms in which it is currently drafted. If, as will undoubtedly be the case, your Lordships will discuss in Committee whether Clause 89 should be further amended, all those efforts could come to nought if it was competent for the Scottish parliament to "amend out" amendments that had been "amended in" during the Bill's passage through this House and another place.

    This is a sensitive but important issue. Judges in Scotland will not deal merely with matters that fall within the legislative competence of the Scottish parliament or the competence of the Scottish executive. They will deal with the construction of legislation which will continue to be part of this Parliament, the existing body of statute law and common law relating to reserved matters.

    It seems to me that it would be a very important bulwark to the independence of the judiciary that once the Bill has completed its passage through this House, the only means by which Clause 89 should be amended would be by primary legislation brought forward to this Parliament.

    In these circumstances, I should very much welcome the Government's response on this issue. I shall not press the matter tonight but I shall take steps to ensure that that problem does not afflict me at Report stage, if we have not reached an accommodation by then. I cannot over-stress the importance of this matter, and I hope that the Minister will be kind enough to tell us the Government's thinking on it.

    First, perhaps I may apologise for the fact that I have not played a part in some of the earlier discussions, important though I have indicated I regard them to be. I regret to say that the United States Secretary of State seems to be under the misapprehension that she is now the Lord Advocate for Scotland. The Committee may not be surprised that some of us are more than a little alarmed that matters which properly fall within the remit of the Lord Advocate should have been taken on board by her and that she should have thought that the best way of dealing with matters of criminal prosecution in Scotland was by announcing them on CNN. Be that as it may, I am sure that my concerns will be understood by many Members of the Committee. My apology is made on that basis.

    As we are dealing with Schedule 4, I wish to ask a highly technical question. I do not expect a reply tonight, but, because it is such a technical point, it might be helpful if I were to indicate it now and the Minister might do no more than offer me, in her usual courteous way, the promise that she will write to me. I am intrigued to see on page 62 that in the European Communities Act 1972,
    "Section 2, other than subsection (2) …"
    "shall not be modified". I have written so many boring words about Section 2(2) in the past and what is covered by that subsection. This provision as set out in the Bill is somewhat obscure to me. If the Minister will promise to write to me before the end of the month of September with a full explanation of the provision, I shall be more than satisfied.

    I too must present my apologies to the Committee for not having been present during discussion of all the amendments since the adjournment. I feel that we are getting into a very complicated situation, which has been made more complicated by the amendments which have been moved by the noble Lord, Lord Sewel. Clauses 28 and 29 and the fourth and fifth schedules all have to be considered together. I shall welcome the long Recess in order to consider in detail what the combined effect of those provisions will be.

    It is all very well for us to do all that we can, as zealously as we can, and with the accuracy of detail which is necessary in legislation, in order to ensure that the reserved powers from the Scottish parliament—

    I am grateful to the noble Lord for giving way. As the noble Lord recognised, he was not in his place when we dealt with the list of amendments to the clause in question. I tried to explain in some detail the thinking and understanding of the Government in moving that series of amendments. I also made clear—this may help the noble Lord at this stage and perhaps satisfy him—that if Members of the Committee with a special interest in this area feel that there are matters which could be advanced through discussion, I shall be happy to have those discussions with my officials and Members of the Committee. I hope that that is something the noble Lord, Lord Renton, will feel able to take up if he wishes to pursue it and that it satisfies him at this stage.

    10.15 p.m.

    I am grateful to the noble Lord for that intervention. This is a difficult and complicated matter. We shall need time to consider it. In view of what he said, I can curtail my remarks.

    When we get down to the detail of the fourth and fifth schedules, we find that there are exceptions to exceptions. In the years to come, there will be those who will have to do their best to administer the situation and sometimes reconcile what appear to be conflicts in the exceptions within the exceptions. They will have a difficult time. Therefore, between now and October, we should take all the time that we can—private time for each of us—to consider how it is likely to work out.

    Perhaps I can attempt to give some reassurance in answer to the noble and learned Lord, Lord Mackay of Drumadoon. If Amendment No. 171 had been moved, it would have prevented an Act of the Scottish parliament from modifying Clause 89 in relation to the appointment and removal of judges. The noble and learned Lord explained why he was concerned about what was meant by the wording of the Bill at the present time.

    I can assure the noble and learned Lord that it is not our intention that the Scottish parliament should be able to modify the substance of Clause 89. Paragraph 11 of Schedule 4 allows an Act of the Scottish parliament to modify various titles, including those of the Lord President, the Lord Justice Clerk, sheriffs principal and sheriffs. But it does not allow the substance of Clause 89 to be altered. In any case, paragraph 11 has now been replaced by the Government's Amendment No. 169A which makes it clear that only the names may be changed.

    I hope that that explanation goes some way to provide some of the reassurance that the noble and learned Lord seeks. He also went wider than the terms of the amendment into some complex matters to which we will come later in the Bill and perhaps we can deal with them then. I shall be delighted to write to the noble and learned Lord, Lord Fraser of Carmyllie, and hope that the noble Lord, Lord Renton, feels that he received the assurance he requires for future dealings on the complex matters he raised.

    I thank the noble Baroness for her reply which certainly met my anxiety. I shall re-read the schedule with eager anticipation of finding the satisfaction which, to some extent, I have already received.

    Perhaps I can make a suggestion which the Government might take on board. I do not want to frighten the Government Chief Whip but it is possible that this Bill will not have completed its Committee stage before the House rises. For that reason, might it be possible to prepare a document to be available to all Members of the Committee setting out the terms of Clause 28 and Schedule 4 as now amended? Indeed, it may be of assistance for it to be available to us next week. These are important changes brought about by the government amendments.

    It is obviously a document which will have no formal status, but I imagine that the draftsman could print it out tomorrow morning. If we had the wording of Clause 28 and Schedule 4, as amended, before us next week and certainly during the Recess, it would be of considerable assistance.

    I think I can reassure the noble and learned Lord. There will be practical issues to overcome but I do not think that they will be insuperable. I shall see what we can do.

    [ Amendment No. 171 not moved.]

    Schedule 4, as amended, agreed to.

    Clause 29 [ Reserved matters]:

    Page 15, line 23, leave out from ("matters") to end of line 24.

    Page 15, line 26, leave out ("that Schedule") and insert ("Schedule 4 or 5").

    On Question, amendments agreed to.

    Page 15, line 27, at end insert—

    ("(2A) Her Majesty may by Order in Council specify functions which are to be treated, for such purposes of this Act as may be specified, as being, or as not being, functions which are exercisable in or as regards Scotland.").

    The noble Lord said: I wish to speak to a package of amendments which relate to the devolution of functions in relation to the regulation of sea fishing. The first is Amendment No. 173ZA to Clause 29. We will have an opportunity to debate related amendments, Amendments Nos. 193ZA, 293AA and 293AB and 294A to Schedule 5 and other clauses, later. It will be for the benefit of the Committee if I outline the complete package at this stage.

    In the White Paper, Scotland's Parliament, the Government made clear our intention to devolve functions relating to sea fisheries subject to suitable co-ordination arrangements to ensure effective discharge of UK obligations. The devolution of functions which are exercised at sea has raised particular questions for the Bill which have required careful thought. The Government are now in a position to table a set of amendments to ensure effective devolution.

    I am in some trouble as to exactly to which group the noble Lord is speaking. I do not mind doing things in the way the noble Lord is suggesting but perhaps he would indicate where we are.

    Before the noble Lord, Lord Sewel, replies to my noble friend, I wonder whether he would bear in mind that in Clause 29 we are dealing with reserved matters of legislation. However, his amendment refers to "functions". In relation to legislation, I am a little puzzled as to what "functions" means. Here we have an opportunity for Her Majesty, by Order in Council, to specify functions which are to be,

    "exercisable in or as regards Scotland".
    But they are presumably legislative functions. Here I am a little worried because we have a problem with regard to what are known as Henry VIII clauses. Later in the Bill we find that where Her Majesty is given power by Order in Council an affirmative resolution of Parliament is required. That is something of a safeguard. However, I find it a little mysterious that we should be giving Her Majesty by Order in Council the power to specify "functions" which are to be treated for such purposes as may be specified. It is all a little unusual.

    In support of the noble Lord, Lord Renton, I notice that the amendment refers to "functions" whereas Schedule 5 refers to "matters". Are "matters" and "functions" the same thing?

    I was brought up to understand that "functions" are things that are done; "matters" may be subjects. That is the fundamental difference.

    Perhaps I may reply to the noble Lord, Lord Mackay of Ardbrecknish. Clearly, the matter before the Committee at this stage is Amendment No. 173ZA, but it may be useful if I speak to Amendments Nos. 193ZA, 293AA, 273AB and 294A for the sake of completeness.

    Perhaps I may continue from where I was. The devolution of functions which are exercised at sea has raised particular questions for the Bill, which have required careful thought, and the Government are now in a position to table a set of amendments to ensure effective devolution.

    As Members of the Committee will understand, the exercise of ministerial and other functions in relation to the regulation of sea fishing will often mean that functions are being exercised outside Scotland. In passing, I should remind the Committee that, for the purposes of this Bill, Scotland includes the 12-mile territorial seas around Scotland, as provided in Clause 112.

    When such regulatory functions are exercised outside Scotland, there will need to be clear connections to Scotland to justify action being taken by Scottish Ministers and for Scottish courts to recognise jurisdiction in trying offences under Scots law. At sea, however, it is possible to envisage various possible connections to Scotland that might be thought to satisfy the condition "as regards Scotland". Equally, it might be possible to establish various connections to other parts of the UK in respect of any particular function.

    This possibility of various such connections being recognised will mean that there will be legitimate grounds for doubt as to whether an existing function is or is not exercisable "in or as regards Scotland", and therefore whether or not it does transfer to a Scottish Minister.

    Amendment No. 173ZA to Clause 29 is intended to address that specific doubt, by enabling an Order in Council to be made to specify when existing functions are or are not exercisable in or as regards Scotland. By enabling such doubts to be resolved, such Orders in Council will make clear when existing functions may be transferred to Scottish Ministers under Clauses 49 or 59, and thus avoid the risk of both Scottish and UK Ministers seeking to exercise identical functions. This power will be used principally for fisheries functions, but will have other uses, for example, in relation to protection of the marine environment. It will also be able to be used for the purposes of Clause 28 so as to clarify the circumstances in which an Act of the Scottish parliament can confer functions upon Scottish Ministers in or as regards Scotland.

    Amendment No. 193ZA to Schedule 5 introduces a specific reservation to make clear that the competence of the Scottish parliament will not extend to regulating sea fishing beyond the Scottish zone, except in relation to Scottish fishing boats. This amendment is to address a similar but complementary concern to that I have already described; that to ensure that functions in relation to sea fishing which may be considered to satisfy the condition "as regards Scotland" should not enable the Scottish parliament or Scottish Ministers to act in relation to non-Scottish fishing boats operating outside those waters which are under the administrative responsibility of Scottish Ministers. All fishermen, not just UK fishermen, need to be clear when they are operating under the laws of Scotland or the laws of the rest of the UK. For laws which apply to sea areas, there needs to be a clear boundary between seas where Scots law will apply and where English law applies; and for that boundary to be fully effective, the Bill needs to make clear that it will be beyond the competence of the Scottish parliament or of Scottish Ministers to regulate fishing outside the zone where Scots law does apply.

    The introduction of this reservation requires us to introduce into the Bill two concepts which need clear definition: the Scottish zone, where Scottish Ministers will be responsible for regulating sea fishing; and Scottish fishing boats, which will be subject to regulation by Scottish Ministers, although subject also to local fisheries laws which apply when they are fishing outside the Scottish zone.

    Amendments Nos. 293AA and 293AB (to Clause 112) provide for a Scottish zone to be established by Order in Council. Amendment No. 193ZA (to Schedule 5) includes a definition of Scottish fishing boats, by relying on the requirement for all such vessels to be registered under the Merchant Shipping Act 1955, and for their registration to indicate a port chosen by the vessel's owners.

    I am conscious that the requirements to implement devolution for sea fisheries has raised interesting problems for our legal advisers, and indeed for UK fisheries Ministers who remain rightly determined to ensure that UK obligations to manage fisheries under the common fisheries policy are implemented effectively. The Government wish to avoid any gaps emerging in our enforcement of EU legislation for sea fisheries, even if that appears to provide for overlapping responsibilities of fisheries Ministers after devolution. In particular, that objective may require further amendment to the Bill to ensure that certain regulatory functions can, if necessary, be exercised concurrently by both Scottish and UK Ministers.

    At the same time, we are concerned to avoid introducing unnecessary complications in the administration of fisheries for the fishermen themselves.

    By introducing an explicit reservation in relation to the regulation of sea fishing by non-Scottish boats outside the Scottish zone, the Bill should provide greater certainty about the management responsibilities of the respective fisheries Ministers within the UK and of the Scottish parliament.

    In effect, Scottish Ministers will be responsible for managing fisheries within the Scottish zone and for managing Scottish boats; and MAFF Ministers will be responsible for managing fisheries within the English zone and for managing English boats. The responsibilities of the Welsh and Northern Irish Ministers and assemblies will be a matter for their respective Bills.

    This overlapping set of responsibilities, which arises because of the need to regulate both by sea area and by fishing boats which may operate in various areas, opens up a possibility that UK fishing boats in future may be required to operate under the authority of separate licences issued by the fisheries administrations of the different parts of the UK.

    I would like therefore to take this opportunity to make it clear that, although the Bill opens up such a possibility, it does not inevitably lead to a requirement for separate licensing systems to apply simultaneously to all UK fishing boats; quite the contrary. Although none of us can commit the Scottish executive, my right honourable friend the Secretary of State expects that the current licensing arrangements, based on issue of a single licence, should continue to operate with minimal disturbance. We expect fishermen will operate under licences issued by the fisheries Minister responsible for that part of the UK where their fishing boat is registered; and that their licence will be both valid and enforceable around the UK, in much the same way as at present. I beg to move.

    10.30 p.m.

    Before we leave this subject, can the Minister confirm that when, on fisheries matters, he refers to "the English zone", he means "the United Kingdom zone"; otherwise we are introducing a dimension separate from the Bill?

    No, I think that in this case I do mean "the English zone" because the Northern Ireland and Welsh considerations must be taken into account.

    In this amendment, the Minister has introduced two points; first, the concept of functions, which I think that I follow although I am not sure about it. Secondly, he referred to fisheries. The noble Lord will know from our correspondence and many conversations of my interest in fisheries in Scotland, as chairman of Scrabster Harbour Trust, and the importance that I attach to that. I cannot pretend for a moment that I have fully taken on board what the Minister has said. As he indicated that there will be an opportunity to speak to that question at a later stage, rather than try to comment now, I should like to study what he said. If he has anything available by way of an explanatory note, I should be extremely grateful to receive a copy.

    I turn to the first point with which I started: the introduction of the concept of functions. I regard Clause 29 as extremely important. All of the previous three clauses that we have debated are interlinked. I am not sure whether my comments should be directed to the amendment of the noble Lord, Lord Sewel, the amendments tabled by the noble and learned Lord, Lord Mackay of Drumadoon, or the intention of the noble Lord, Lord Renton, to oppose that the clause stand part. I shall take this opportunity to comment generally on Clause 29 and hope that it will remove the need for a later intervention.

    Clause 29 as a whole deals with the ability of Ministers by Order in Council to make modifications to Schedules 4 and 5 which are the reserved matters. It is impossible to discuss this clause without going back to the debate on Amendment No. 144 in the name of my noble friend Lord Steel. In that short debate the noble Lord, Lord Sewel, extremely seductively and with great skill sidetracked the Committee by a discussion on federalism. That was not the question in point. If the definition of sovereignty is the final power in any matter, by virtue of the fact that the Parliament at Westminster retains the right to modify, amend or repeal this Act at a later stage clearly sovereignty is retained. Therefore, sovereignty is never in question.

    However, we took into account the comments of the noble Lord and his assurance as to the seriousness with which matters were to be devolved and reserved. The clause permits by Order in Council the matters within Schedules 4 and 5 to be changed almost by the flick of an administrative pen. This is a very technical area. Since I am not a lawyer I am happy to be corrected. However, given all of the assurances that we have received about the seriousness with which the Government intend to devolve matters to the Scottish parliament, and their firm intention—which we do not doubt; indeed, we share it—that that parliament will have full exercise of those devolved powers, it is extraordinary in the face of those goods intentions that a clause should allow a UK Minister, by an administrative flick of the pen, to remove or add to the reserved powers.

    In discussing this matter with my noble friends a short while ago I suggested that if there was no satisfactory explanation this would be the place, if not in the context of my noble friend's amendment, where we should table an amendment. I shall not make the exaggerated claim that this goes to the heart of the Bill. However, I believe that it goes to the heart of the question whether the message that the Government intend to send to the people of Scotland is that this is substantive devolution or just window-dressing. I apologise to the Committee if I have strayed into a debate on Clause 29 stand part but these matters are so complicated that I want to get my oar in before the matter disappears.

    I have three very short questions to put on Amendment No. 173ZA. First, on whose advice is it intended that Her Majesty shall act? Secondly, is the Minister aware of the breathtaking scope of this authorisation of delegated legislation to amend primary legislation?

    Thirdly, is the Minister aware that under a part of the Bill which is supposed to be devoted to legislation he has included an amendment which deals with executive functions? Would it not be more proper, as well as more elegant, to include the substance of Amendment No. 173ZA under ministerial functions starting in Clause 41?

    This group of amendments is a puzzling mix. I had not paid much attention to Amendment No. 173ZA because that was in a part of the Bill with which my noble and learned friend Lord Mackay of Drumadoon was dealing. For some reason that I cannot understand he seems to think that Amendment No. 193ZA and so forth is well within my bailiwick because it mentions fish.

    Perhaps I can be sure that we are taking the whole of the group which starts with Amendment No. 193ZA and which includes Amendments Nos. 293A and 293B tabled by my noble friend Lord Selkirk of Douglas, so that my noble friend does not lose the opportunity to speak on the issue of sea fishing. I shall start with the simpler matter, although fishing is never simple.

    After his explanation, I think that I understand what the Minister is doing. I was puzzled when I saw the amendments, but I understand that he is making it clear that he is dealing with vessels fishing within the Scottish zone, which is out to the median line, I presume, or the 200-mile limit in the North Sea. I think that it is bound to be the median line. Down around the south of Islay it is bound to be the median line with Northern Ireland, I would guess. Vessels fishing there are clearly fishing in Scottish waters when it comes to the application of the law. That is the point to make to my noble friend Lord Dixon-Smith: it is to make it clear that Scottish law will prevail with regard to fishing vessels fishing in those waters, whereas, of course, English and Welsh law will prevail if they are fishing in waters which are within the English zone. I understand that.

    I understand also from what the Minister said that the exception in relation to Scottish fishing boats outside the fishing zone does not include the rules and regulations, so we will not have the position, as I thought we might have, where the Scottish Office would have to make the rules and regulations for Scottish fishing boats fishing, say, off the south west of England. These boats will be regulated by MAFF which will have given them a licence to fish in that fishing zone. Presumably, being law-abiding Scots they will fish only if they have a licence.

    My problem occurs when I am asked to tie in Amendment No. 173ZA with these amendments on sea fishing which all go together. The Minister suggested at the start that Amendment No. 173ZA applied only to the new Section 5A on sea fishing, but he then indicated that it did not; that it could apply to Clause 28. I wondered why an amendment of such breadth and -dare I say?—close to being a Henry VIII provision, if not firmly being in Henry VIII territory, had been introduced at this stage when the Delegated Powers Scrutiny Committee has completed its scrutiny of the Bill.

    My noble friend Lord Kingsland came in on that point. Amendment No. 173ZA is extraordinarily wide. If the Government want it to refer to sea fishing that is what it should say. If it goes wider than that, it should have been separated from the sea-fishing amendments to prevent us thinking that it applied only to the sea-fishing provisions. I am content with the sea fishing amendments. I have taken advice. Having listened to the Minister, I shall consider what he said before Report stage. I am reasonably content with what he said about sea fishing. However, like my noble friend Lord Kingsland, I am less than happy with Amendment No. 173ZA. I hope that the Minister can give me some words of assurance; otherwise I may be disposed to divide the House.

    10.45 p.m.

    Perhaps I may recap and I hope give some assurance to noble Lords who have spoken on these amendments.

    The amendments are required, first, in order to ensure that there is an effective transfer to Scottish Ministers of functions in relation to the regulation of Scottish sea fisheries; and, secondly, to ensure that the competence of the Scottish parliament and of Scottish Ministers does not extend to regulating sea fishing by non-Scottish boats outside the Scottish zone of British fishery limits. Those are the two issues that the amendments seek to address.

    I am grateful to the Minister for giving way. We are dealing with the powers of parliament not with the powers of Ministers.

    The proposed Order in Council does not modify enactments but merely provides what functions are or are not exercisable in or as regards Scotland.

    Perhaps I may deal with another direct point. The Order in Council power in Clause 29 is exercisable by the Queen and is subject to affirmative procedure both at Westminster and in the Scottish parliament. The ministerial advice to the Queen would be given by the UK Minister.

    I refer specifically to the amendment that gives the noble Lord, Lord Mackay of Ardbrecknish, some concern. The purpose of Amendment No. 173ZA is to clarify which existing ministerial functions will transfer to Scottish Ministers—it is as simple as that—by providing for Her Majesty by Order in Council to specify which functions are or are not functions exercisable in or as regards Scotland. This provision should therefore clarify when functions which are exercisable outwith Scotland are in fact exercisable as regards Scotland by virtue of some other connection to Scotland.

    It will be used principally for fisheries functions. That is its principal objective. However, having set this pattern, this framework, this arrangement, it is possible that there will be other uses—for example, in relation to the protection of the marine environment. I think that we are over-egging the pudding a little if we see it as some major matter of principle. The amendment seeks to deal with the specific issues of what functions should be exercisable by Ministers and the parliament in relation to the coastal areas around Scotland; and in particular the difficulty of fisheries where one has zones, boats and licences.

    The Minister included Amendment No. 193ZA and the group associated with it. I have tabled Amendments Nos. 293A and 293B. Amendment No. 293A seeks to leave out "adjacent to" and insert "surrounding". The purpose was to clarify the definition of Scotland to include the internal waters and territorial sea. The definition in Amendment No. 112 seemed unclear, and the amendment sought to clarify it. I should be grateful if the Minister has time to consider it.

    I can deal with that matter now, although there will be an opportunity later to discuss it in detail. However, I can assure the noble Lord that in all fisheries legislation the term "adjacent to" is the term that is used. The term "surrounding" is not a term which is used in fisheries legislation.

    As I said when I intervened the first time, I am reasonably content with the fisheries part, which I had expected to be taken separately. I will certainly read what the noble Lord has said and will take advice on it but, as I understood it, I am reasonably content with what he said. I remain profoundly concerned about Amendment No. 173ZA. If it has principally a fisheries function, I believe that ought to be said very clearly. If it has other uses then those ought to be put clearly, but as it stands it seems to me to be extraordinarily wide and it gives the executive very considerable powers. I really am very unhappy and, as my noble friend said, it probably is not even in the correct part of the Bill. I think it would be far safer if the Minister would take this particular amendment away and reconsider it. He could then bring it back, if he wants to, at the appropriate part of the Bill, and much more tightly drafted so that it actually applies to those matters to which it is supposed to apply and is not capable of being applied to anything else.

    I have little doubt that the noble Lord could take this away and come back at Report stage in October, after he has thought about the matter. I would urge him to do that; or, indeed, he could do as my noble friend suggested and place it in Clause 41—which I do not think we will reach tonight. I think there will be time for him to put down a suitable amendment to that clause.

    I have listened to what noble Lords have said and to the concerns they have expressed. I would prefer to maintain the present position and persist with the amendments, but I give the undertaking that I shall reflect upon what noble Lords have said yet again, over the long summer evenings that beckon—there is little else to do, given the state of the weather!

    10.53 p.m.

    On Question, Whether the said amendment (No. 173ZA) shall be agreed to?

    Their Lordships divided: Contents, 44; Not-Contents, 29.

    Division No. 1


    Alderdice, L.Linklater of Butterstone, B.
    Brooks of Tremorfa, L.Lockwood, B.
    Burlison, L.McIntosh of Haringey, L. [Teller.]
    Carlisle, E.
    Carmichael of Kelvingrove, L.Mackie of Benshie, L.
    Carter, L. [Teller.]Mar and Kellie, E.
    Dean of Beswick, L.Monkswell, L.
    Desai, L.Paul, L.
    Dubs, L.Pitkeathley, B.
    Evans of Parkside, L.Ramsay of Cartvale, B.
    Falconer of Thoroton, L.Rea, L.
    Farrington of Ribbleton, B.Rendell of Babergh, B.
    Sewel, L.
    Gilbert, L.Smith of Gilmorehill, B.
    Gordon of Strathblane, L.Steel of Aikwood, L.
    Grenfell, L.Stone of Blackheath, L.
    Hacking, L.Thomas of Macclesfield, L.
    Hardie, L.Thomson of Monifieth, L.
    Hardy of Wath, L.Thurso, V.
    Haskel, L.Tope, L.
    Hayman, B.Watson of Invergowrie, L.
    Hoyle, L.Whitty, L.
    Islwyn, L.Young of Old Scone, B.


    Balfour, E.Mackay of Drumadoon, L.
    Byford, B.Minto, E.
    Carnegy of Lour, B.Montrose, D.
    Chesham, L.Palmer, L.
    Courtown, E. [Teller.]Park of Monmouth, B.
    Dundonald, E.Renton, L.
    Dunleath, L.Rowallan, L.
    Saltoun of Abernethy, Ly.
    HolmPatrick, L.Selkirk of Douglas, L.
    Kenyon, L.Sempill, L.
    Kingsland, L. [Teller.]Stair, E.
    Kintore, E.Stodart of Leaston, L.
    Lindsey and Abingdon, E.Torphichen, L.
    Lucas of Chilworth, L.Trefgarne, L.
    Mackay of Ardbrecknish, L.Weir, V.

    Resolved in the affirmative, and amendment agreed to accordingly.

    11. p.m.

    Page 15, line 27, at end insert—

    ("( ) Subsection (2) above does not permit any amendment to be made to the provisions of paragraphs 1 to 5 of Part I of Schedule 5 by Order in Council.").

    The noble and learned Lord said: This amendment is grouped with Amendment No. 173B. Both seek to achieve the effect that certain specified parts of Schedule 5 shall not be amendable by Order in Council passed in furtherance of the powers set out in Clause 29(2) as currently drafted.

    The two parts of Schedule 5 to which I seek to apply this restriction are, first, that which is to be found on page 64 of the Bill; namely, the first five paragraphs of Part I which deal with various important constitutional matters. In my submission, it is self-explanatory that, if there were to be any change in the provisions set out in those paragraphs, it should only be done by way of primary legislation, which would be subject to the full detailed scrutiny of an amendment not only of this Chamber but also of another place.

    Amendment No. 173B deals with a matter which is set out on page 82 of the Bill under "Head 11"; namely, Section 1, which refers to a "reservation" as regards the important matter of judicial remuneration, with four separate subparagraphs listing the different judges in Scotland.

    Some weeks ago, I attended a very interesting seminar held by the Faculty of Advocates in which the noble and learned Lord the Lord Advocate and I took part. It was held under the Chatham House rules and, therefore, I am unable to indicate who said what. However, it is possible for me to indicate what views were expressed. Among the issues discussed and to which contributions were made was the issue of the importance of judicial remuneration being a reserved matter. My understanding of what was said is as follows.

    When the Government came forward with their proposals for a devolution settlement and set them out in the White Paper prior to the referendum and it became clear that, as a result of the referendum, a devolution Bill was to be presented to Parliament, various representations were made on behalf of the judiciary in Scotland that they should continue to be regarded for the purposes of salary and pension provision on the same footing as they currently enjoy with judges in other parts of the United Kingdom. Indeed, if this equal footing which has applied for many years now were to be departed from, there would be a risk of judges in Scotland—or, at least, certain categories of them—falling behind and their status being diminished.

    I pick up a point which I made earlier this evening in referring to what the noble and learned Lord, Lord Hope of Craighead, said in his Second Reading speech on the Bill. It is of the utmost importance that the independence of the judges be maintained and that their status and the respect in which they are held by society should not be diminished in any way.

    If—as will be possible—it will fall to judges in Scotland to set aside provisions of an Act of the Scottish parliament, or provisions in statutory instruments and secondary legislation made by members of the Scottish executive, it is not impossible that this will lead to an element of political controversy. They will have—as indeed will judges in other parts of the United Kingdom—a far greater role to play in dealing with primary legislation in particular than is possible for judges when they are construing and applying primary legislation coming from this Parliament. It is for that reason that the Scottish judges felt that judicial remuneration should be reserved. The Government sensibly and constructively accepted those representations; hence the provisions that are to be found on page 82 of the Bill. It seems to me sensible that if these provisions are to be amended, that should take place only as a consequence of primary legislation which is fully debated in both Houses of this Parliament. I beg to move.

    Before I speak to Amendments Nos. 173A and 173B, I wish to comment briefly on the previous debate as I did not realise that the noble Lord, Lord Mackay of Ardbrecknish, was going to divide the Committee so quickly. I was therefore unable to speak at that point. However, I wish to explain why I persuaded my noble friends to join me in the Government Lobby. Our objection is to the totality of Clause 29 and the implication that amendments to devolved matters and reserved matters cannot be dealt with by Order in Council. Therefore if there is anything that we might support, it would be the intention of the noble Lord, Lord Renton, to oppose the Question that the clause stand part of the Bill.

    However, we also feel that, given the complexity of what we are discussing, and particularly the complexity of the amendments that have been moved by the Government, we prefer to wait until a later stage to determine what course of action we wish to take. At this stage we think it is preferable to read what has been said before making such decisions. That is why I persuaded my noble friends to follow me into the Government Lobby.

    Turning to the two specific amendments, I do not see any great harm in Amendment No. 173A. The principle of the Bill is to devolve devolved matters, and to reserve reserved matters. Since the amendment reinforces the reserved matters, I do not mind that at all. What I am looking for is the other side of the coin; namely, that devolved matters are well and truly devolved.

    Amendment No. 173B afforded me some amusement when I read it, given the volume of lawyers, judges and potential judges taking part—that their status and pay is the one matter above everything else that needs to be enshrined in this legislation forever.

    As the noble and learned Lord said, these amendments prevent future changes to certain parts of the list of reserved matters by Her Majesty by Order in Council. There has been singled out the constitution, in paragraphs 1 to 5 of the schedule, and also judicial remuneration, to which the noble and learned Lord drew our attention.

    Any Order in Council requires an affirmative resolution of both Houses of this Parliament. In addition it would require the approval of the Scottish parliament. So the three Houses would effectively consider the matter.

    The advantage of the Order in Council mechanism is that it allows changes to the list of reserved matters to be made promptly by agreement, with both Holyrood and Westminster having an opportunity to debate and approve the proposal. These amendments would remove that flexibility and would mean that any changes to these matters would require to be done by primary legislation. We do not consider that that is necessary, given that the Order in Council procedure is affirmative and would be introduced only in the event of the agreement of both Holyrood and Westminster.

    The primary legislation route is undesirable in the context of these amendments, because it seeks to introduce the concept of first and second-class reserved matters. It has a different procedure for the constitution and judicial remuneration from other reserved matters. It is our contention that all matters that are reserved to Westminster are of equal importance and must be seen as such.

    I can understand that noble Lords may have some concerns that an Order in Council would mean less control over any changes by the UK Government and Parliament. However, we see no reason why that should be the case. Not only does there have to be the agreement of the United Kingdom Government before the order is drafted, but it requires an affirmative resolution of both Houses of this Parliament and would also require the support of Holyrood.

    I do not share the concerns of the noble and learned Lord, Lord Mackay of Drumadoon, about the effect on judicial independence. The independence of the judiciary is not threatened by the provision that the list of reserved provisions relating to remuneration may be altered by Order in Council. It is inconceivable that the United Kingdom Parliament would bring forward an Order in Council which would distinguish between the judiciary in England and Wales on the one hand and the judiciary in Scotland on the other. I cannot imagine that any government would do that. All governments are jealous of the principle of judicial independence.

    That is a further protection in relation to the point raised by the noble and learned Lord that, because of the involvement of the judiciary in reviewing legislation, considering legislation or even striking down legislation on occasions, there may be a temptation for the Scottish parliament to wreak vengeance. But that would not be open to it because it requires the Order in Council to be approved in both Houses of this Parliament.

    For those reasons I respectfully submit that these amendments ought not to be agreed to. I invite the noble and learned Lord to withdraw his amendment.

    Before the noble and learned Lord, Lord Mackay of Drumadoon, responds to the invitation from my noble and learned friend, perhaps I may express my gratitude, having just entered the Chamber, to the noble Viscount, Lord Thurso, for mentioning the Division that took place some minutes ago. Perhaps I may indicate to the Committee that I was dining in another part of the Palace of Westminster, and there was no indication whatever that a Division was taking place in this House.

    I have had reason to complain in recent weeks about the fact that in another part of the Palace of Westminster there was no indication that Divisions were taking place in your Lordships' House. I find that totally unsatisfactory. Tonight a Division took place and my noble friends on the Front Bench were successful in their prosecution of the case and carried the Division in the lobbies; but, when I look at the verdict that was recorded, the result could as easily have been different. The other place rose much earlier tonight. It seems to me that when that happens there is a breakdown in communication.

    Members on all sides may say, "He is defending his own position, having missed the vote". In some ways I am, because I happen to be on the roster of those who should be here tonight and should vote in any Divisions. I did not do so because I was not told that a Division was taking place. I wish to record the fact that there was no indication in the other part of the Palace of Westminster, where I was dining, that a Division was taking place. I plead that the House officials should take notice of what happened earlier tonight.

    11.15 p.m.

    Before the noble Lord replies to the debate, perhaps I may respond to my noble friend. As he said, a number of these occasions have arisen. When another place rises before us, the annunciators there are switched off, in the same way as our annunciators are switched off when we finish our business. There is clearly a new point here which we need to raise with the House officials and the officials of another place, as my noble friend suggests. We shall do that.

    It is one thing to switch off the annunciators; it is a different thing to switch off Members of your Lordships' House. I was switched off; it is as simple as that.

    I agree with everything that the noble Lord said. In my room, when Divisions are called in both Houses at the same time, various bells ring, which make it bewildering as to where one is meant to go. I am disappointed that the noble Lord was not here for the Division. I am quite sure that, having listened to the argument advanced by my noble friend Lord Mackay of Ardbrecknish, he would have voted in support of his opposition to the somewhat extraordinary position adopted by his noble friends. He can be grateful that his conscience can be clear as a result of being elsewhere.

    I find what the noble and learned Lord the Lord Advocate said about all reserved matters being equally important a somewhat curious proposition to take on board. I happened to open the Bill at page 82, lines 6, 7 and 8, and see among the reserved matters,
    "The subject-matter of the Public Lending Right Act 1979".
    I personally have some difficulty equiparating the importance of that with what is set out in paragraph 1 of Part I of Schedule 5 on page 64.

    I do not labour the matter of judicial remuneration. Those who are in receipt of it are well able to argue in their own cause, as the noble and learned Lord, Lord McCluskey, did to some considerable effect at Second Reading. But, in his absence, it was appropriate that the matter should be raised.

    I concede that the noble and learned Lord the Lord Advocate was right to draw attention to the provisions which will apply when the Order in Council procedure is followed; namely, that affirmative resolution will be required in this Parliament and in the Scottish parliament. Therefore I fully accept that it is not a straightforward question of the Scottish parliament amending these provisions by their own hand.

    I have some lingering concerns, but, in view of the fact that the noble Lord, Lord Ewing, is in his place and would no doubt vote for the Government on this occasion, I shall not press the amendment to a vote. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendment No. 173B not moved.]

    On Question, Whether Clause 29, as amended, shall stand part of the Bill?

    I tabled this Motion not with the intention of dividing the Committee but in order to draw attention to the fact that Clause 29 and Schedule 5 together deal in a complicated way with reserved matters; that is, matters on which the Scottish parliament will not have power to legislate. It happens to be a Henry VIII clause which can be altered merely by Order in Council, though subject to affirmative resolution by both Houses of Parliament. But it is done in an extremely complicated way.

    Reserved matters are exceptions to the general power stated in Clause 27 given to the Scottish parliament to legislate. But it is done in Schedule 5 by making reservations and then exceptions to reservations over pages 66 to 83—17 pages in all. They are fine distinctions and there are bound to be disputes as to whether a matter is reserved.

    It is not until we reach Clause 91 and Schedule 6 that we find the arrangements that are to be made for resolving the uncertainties, which I suggest are bound to arise. There, under the heading of "Devolution Issues", the Bill sets out in Schedule 6 (not in the clause, as one might have expected) that arrangements are made for the determination of such issues by proceedings to be instituted either by the Advocate General or the Lord Advocate. I do not see why it should be one or the other: I should have thought it best that that responsibility should not be divided between the two but should be placed upon one or other of them.

    In paragraph 7 of Schedule 6 we find that that vitally important matter is to be decided judicially. It is just tucked away in the schedule. That is not the way in which we are accustomed to legislate. It may be that, as the matter went through its rather cursory proceedings in another place and because we should not try to change the Bill too radically, there is not much we can do about that. But we have the long Recess between now and Report stage and I hope that the Government realise that in this important matter of granting devolution to the Scottish parliament we should make the matter as clear as possible. We should try to avoid uncertainties which will give rise to the need for judicial decisions.

    It may be too much to hope for. But between now and next October I hope that the Government will consider whether it is possible to find some way of simplifying the whole procedure. I hope that I am not asking the impossible, but I feel bound to put it before the Committee.

    I rise to support my noble friend Lord Renton. We have already touched on the reasons why the Government consider that Order in Council procedure is appropriate for amending Schedule 5. For different reasons the noble Viscount, Lord Thurso, and I have reservations about that. It would be prudent if we all reflected on that over the Recess. Therefore, I do not intend to say any more tonight. However, I would not wish Clause 29 to stand part of the Bill without Ministers being aware that on these Benches there is concern about the terms of the schedule being amended, one way or another, by the Order in Council procedure.

    As I indicated earlier, I am not sure where to intervene in relation to Clause 29. I have already said most of what I want to say. However, I very much agree with the general sentiments put forward by the noble Lord, Lord Renton, about the great danger in using these mechanisms to achieve these ends. This is a large point of principle for us. We want to see clarity between the parliaments. We want changes to the legislation to be made by primary legislation after proper discussion and not by the back-door. We do not believe that it is an issue of sovereignty. Having said that, the noble Lord, Lord Sewel, said that he was interested in clarifying the functions. In that regard, if this can be so worded as to deal with functions rather than changes to the legislation, I would have some sympathy with him.

    The noble Lord also said, if I understood him correctly, that this would be put forward by a UK Minister subject to affirmative resolution at both Westminster and at Holyrood. When he comes to respond, perhaps he will confirm that that means that if Holyrood chose not to so resolve the order would lapse.

    I wonder whether I may deal with that point straight away. As the Bill stands, Schedules 4 and 5 can be modified by Her Majesty by Order in Council. As I said, that would be subject to the affirmative procedure both at Holyrood and at Westminster. I make that absolutely clear. One would need both Holyrood and Westminster to agree to any switching around in that regard.

    I spoke about this earlier but I should like to re-emphasise that, without that mechanism, not only is a great deal of flexibility lost but it would deny the Scottish parliament the opportunity to debate and approve any changes to the list of reserved matters. If one did not have the affirmative procedure in both parliaments, one would fall back, as the noble Viscount recognised, on primary legislation in this Parliament. If one did that, it would mean that the Scottish parliament would not have the opportunity to make a direct contribution on which matters would be reserved and which matters would be devolved subsequent to the Bill being enacted. This is a quite deliberately constructed procedure to make sure that arrangements can be agreed between the two parliaments on the allocation of subjects between reserved and devolved. Any other route would abstract the Scottish parliament from that procedure. Rather than the provision somehow weakening the contribution and locus of the Scottish parliament, it is actually strengthening it.

    Can the Minister say where exactly the Bill tells us that this will be subject to affirmative resolution in the Scottish parliament as well as in the two Houses here?

    I am happy to make that precise point by writing to the noble Lord. But I have to tell the noble Lord that I am telling him that it would be subject to that procedure.

    Clause 29, as amended, agreed to.

    Schedule 5 [ Reserved matters]:

    Page 64, line 8, at end insert ("including the holding of referendums on questions relating to the maintenance of that Union,").

    The noble Lord said: I shall speak only to Amendment No. 174. My noble and learned friend Lord Mackay of Drumadoon will speak to the other amendments in the group.

    Schedule 5 concerns the reserved matters. Paragraph 1 of Schedule 5 sets out five of them. By far the most important, as far as I am concerned, is set out in subparagraph (b),

    "the Union of the Kingdoms of Scotland and England".

    I believe that all parts of the House will agree that that is very important. The whole idea of this Bill is to make quite certain that the Union remains.

    Earlier I tried to include a pre-legislative referendum on whether there should be an independent vote at some stage and I was advised that the Government did not like that. This is a classic position for it to be included; namely, after

    "the Union of the Kingdoms Scotland and England, including the holding of referendums on questions relating to the maintenance of that Union".

    Surely, it would be ultra vires to have a referendum at all to discuss it. Therefore, I would like to see this provision in this place. I beg to move.

    11.30 p.m.

    We have a certain amount of sympathy with the object, but we do not believe that this is the way to go about it. The noble Lord is of course terrified that the SNP will sweep all before it and before we know where we are, it will be holding a referendum on this point. I do not believe that that is going to happen. I would take bets that there is going to be no overwhelming victory for the SNP when the election takes place.

    There is a great deal of good sense to be put to the Scottish people. We have to concentrate on the job of curing the ills of Scotland and promoting its virtues. The ills are many, including the health of the people of Scotland, which is about the worst in Europe. We have to do something about that. There is real work to be done. We have to promote the virtues of enterprise which are shown so often in other parts of the world. We have to promote them at home in relation to agriculture, fishing and marketing. There is a host of matters that the Scottish people want us to pursue.

    We should leave the question to the Scottish parliament and go flat out to persuade the people of Scotland to elect sensible people who will not waste time on referendums of this sort.

    There are snags. If the Scottish people were foolish enough to elect people who did, it appears to me that the question put is very important. It would be quite wrong to leave that to the Scottish parliament. I saw a question put on a referendum in Quebec. It more or less said, "If you want to go to heaven, vote for a separate Quebec". These questions need to be addressed, but on the whole there is no question but that this matter should be left to the Scottish people. We have a responsibility to see that good people get into the parliament.

    The differing views expressed by my noble friend Lord Rowallan and the noble Lord, Lord Mackie, illustrate the importance of the matter being clarified at this stage. The purpose of the three amendments which I have tabled, which are Amendments Nos. 176, 177 and 259A, is two-fold. The first two amendments endeavour to place on the face of the Bill in unequivocal terms this Parliament ruling in effect whether or not it would be competent for a Scottish parliament,

    "to enact an Act of the Scottish Parliament authorising the Scottish Executive to hold a poll in Scotland for the purposes of ascertaining the views of those polled as to whether or not Scotland should become independent of the United Kingdom".
    Amendment No. 259A has a different but equally important purpose, which is to set out on the face of the Bill that the Scottish executive can hold polls or referendums only when it is authorised to do so by an Act of the Scottish parliament and that any such Act must specify, among other things, certain key points: namely,
  • "(a) when, and in which area, a poll is to be held,
  • (b) who shall be eligible to vote in any poll, and
  • (c) the wording of any questions or propositions to be put to those polled".
  • In another place, the issue of the competency of holding a referendum on whether Scotland should remain part of the UK was raised on more than one occasion. In dealing with that issue on 12th May at col. 256 of the Official Report, in response to the specific question put to him by my right honourable friend Mr. Ancram,
    "Does that mean that a referendum on the Union also will be a reserved matter and not available to the Scottish Parliament?"
    the Secretary of State replied in these terms:
    "It is clear that constitutional change—the political bones of the parliamentary system and any alteration to that system—is a reserved matter. That would obviously include any change or any preparations for change …
    If one assumes that that is a way of changing the constitution, no, it is not in the power of the Scottish Parliament to change the constitutional arrangements …
    A referendum that purported to pave the way for something that was ultra vires is itself ultra vires".
    Those views were echoed by the noble and learned Lord the Lord Advocate at Second Reading when, on 18th June, at col. 1787 of the Official Report, he said:
    "The present Government have no plans for such a referendum, nor can the Scottish parliament legislate for such a referendum".
    In the other devolution Bills going through Parliament at the moment the holding of polls is addressed. In Clause 36 of the Government of Wales Bill, it is provided that the assembly may hold a poll in an area consisting of Wales or any part of Wales for the purposes of ascertaining the views of those polled about whether or how any of the assembly's functions, other than those set out in Clause 33, should be exercised. The clause goes on to set out in terms similar to those in my amendment, Amendment No. 259A, the need for the assembly to determine certain key issues, including whether a poll should be held and, if so, where and when. In Part I, Clause 1 of the Northern Ireland Bill, there is again provision for the holding of a poll, reinforced by certain details set out in Schedule 1.

    No similar provisions are to be found in this Bill. I believe that there should be such provisions. It is inevitable that the issue of the holding of referendums or polls will arise. Indeed, it already has. It may be possible to speculate that to some extent the attitude adopted by the Secretary of State for Scotland and his colleagues in casting doubt on the competency of a referendum on independence has played into the hands of the SNP and is one of a number of reasons why it is doing well in the polls at the moment. Time will tell whether that will prove permanent, but it is certainly possible for the SNP to say that this refusal to give the Scottish parliament the power to hold a poll is yet another example of a Labour Government being run by London and not allowing the Scottish people to be trusted to take decisions affecting their own future.

    Notwithstanding the argument explained by the Secretary of State in another place and repeated by the Lord Advocate at Second Reading, I believe that it would be perfectly possible to construct a respectable legal argument that it was within the legislative competence of the Scottish parliament to pass an Act of Parliament authorising the executive to hold a referendum on the issue of whether those who voted in Scotland wished Scotland to be separate from the UK. It would be perfectly possible to construct an argument that it would assist members of the Scottish parliament in the discharge of their devolved legislative and executive duties to be aware of the thinking of Scottish people on that very important issue.

    Many noble Lords will be aware that Strathclyde Regional Council recently felt it appropriate to hold a poll on the question of whether water should be privatised in Scotland. Taking a slightly different tack, other local authorities believed that it was appropriate to contribute to the work of the Scottish Constitutional Convention by making funds available to cover the costs that it incurred. When a decision to make such a payment by Grampian Regional Council was challenged by the Commission for Local Authority Accounts in Scotland it fell to the noble and learned Lord the Lord Advocate in a different guise to defend that council's decision. It was held by the court that it was well within the power of the local authority to support the work of the convention on the basis that in some way it might be in the interests of those who lived in the local authority area to have such work supported. Clearly, there was a different statutory framework in that situation, but I do not shrink from the suggestion that it would be perfectly possible for an Act of Parliament to be passed by the Scottish parliament authorising such a poll and for that to end up in the courts.

    Throughout the debates on this Bill I have sought to make clear my belief that the courts should be involved in these matters as infrequently as possible. For that reason I have tabled Amendments Nos. 176 and 177 which are contradictory. I anticipate that when Amendment No. 176 is called I shall be told that if it is accepted by the Committee I shall be unable to move Amendment No. 177. My objective is to clarify the position. I have no wish to indicate whether it would be desirable to have such a referendum at an early date; there are arguments both ways. But I remain convinced that the law on this matter should be clarified. If it is not then the festering issue as to whether the Scottish parliament is competent to hold such a referendum will rumble on. In supporting my noble friend Lord Rowallan in his amendment, I urge the Government to indicate clearly whether it is their policy to accept Amendment No. 176 or Amendment No. 177.

    Can the Minister, in reply, set out how it is possible to access such a referendum?

    Before my noble friend replies, I believe that the noble and learned Lord, Lord Mackay of Drumadoon, falls into the fatal error that a whole host of Conservatives in Scotland have fallen into. They associate devolution with separation. What the Government are establishing at the minute is not a separate but a devolved Scottish parliament. There is no question in my mind or that of the Scottish Constitutional Convention, of which I had the honour for many years to be co-chairman with my good friend the noble Lord, Lord Steel of Aikwood, that the Scottish parliament should have the right to hold a referendum on the whole question of separation.

    The noble and learned Lord, Lord Mackay of Drumadoon, and his colleagues in the Conservative Party in Scotland feed the SNP with sustenance by constantly putting the argument that a Scottish parliament may have the right to hold a referendum on separation. If it was honest, the SNP would argue that a general election was a proper forum in which to hold a referendum on separation.

    There is no point in the noble Lord, Lord Mackay of Ardbrecknish, nodding his head in disagreement. In all my experience, down the years in general elections the SNP has argued for separation. I do not think that it would want to deny that. It has been denied that by the Scottish electorate. So where on earth the Scottish Conservative Party gets the idea that if there were a referendum in Scotland on the whole question of separation there would be a different result baffles me completely.

    The Conservative Party in Scotland is sustaining the SNP in Scotland by the argument that the Scottish parliament should have the right to hold a referendum on whether Scotland should be separate. That is a matter for a general election not for the Scottish parliament. I hope that when he responds my noble friend the Minister will reject this whole question out of hand.

    11.45 p.m.

    There is just one thing that I should like to say about this matter. In a general election there would be matters at stake other than just the question of separation. There almost always are.

    I cannot resist the observation that Amendments Nos. 176 and 177 taken together, in the name of the noble and learned Lord, Lord Mackay of Drumadoon, finally produce the empirical evidence for which I have been seeking for a long time; that is, the slightly schizophrenic nature of the Conservative Front Bench facing in opposite directions at the same time.

    I am grateful to the Minister for giving way. Perhaps later he could invite his noble and learned friend the Lord Advocate to explain to him the legal concept of the Esto argument.

    I do not need that, but I still think that it was a temptation that I could not resist.

    I shall deal now with the other matters raised in the debate rather than the matter of substance. The noble Earl, Lord Mar and Kellie, asked how such a referendum should be accessed. It is simple: it is through an Act of the UK Parliament, because the union of the kingdoms is a reserved matter.

    On Amendment No. 259A, on the issue that there should be a clause in the Bill specifying the ability to hold polls, and the nature of polls, we do not require a provision in the Scotland Bill to hold referendums or polls in respect of devolved matters. Unlike the Welsh assembly, the Scottish parliament already has legislative competence to arrange for any such poll on a devolved matter. That is the basic difference between the Scottish parliament and the Welsh assembly. The Welsh assembly lacks that legislative competence to provide for a poll or referendum on matters for which it is responsible.

    I return now to the issue of substance—the holding of a referendum on independence. I wish the Committee to be in no doubt that as the Bill stands the Scottish parliament will not be able to legislate to hold a referendum on independence as the union of the kingdoms is already a reserved matter under Schedule 5. Explicit reference along the lines proposed by the noble Lord, Lord Rowallan, is just not needed.

    In determining what relates to a reserved matter, the government amendments tabled to Clause 28 are of help here, because they indicate that we must look at the purpose of what is being done. If the parliament passed an Act to hold a referendum about whether the Union should continue, it would thus clearly be legislating in relation to the reserved matter of the Union. Any such Act would be about the continuation of the Union and it would therefore be beyond the parliament's competence and would not be law.

    Perhaps I may go through the three steps that lead to that conclusion. First, the parliament cannot legislate if the provision relates to a reserved matter. That is Clause 28(2)(c). Secondly, the Union of the Kingdoms of Scotland and England is a reserved matter by virtue of paragraph 1(b) of Part I of Schedule 5. Finally, legislation for a referendum on independence would be legislation about whether the Union should be maintained and would therefore relate to the reserved matter of the Union, and so be beyond the competence of the parliament. That is brought in by the purpose test which we discussed earlier.

    I hope that Members of the Committee will be absolutely assured that the parliament does not have the legislative competence to legislate in order to provide for a referendum on independence. On that basis, I hope that the noble Lord will be able to withdraw the amendment.

    I thank the Minister for that full explanation, which I am delighted to hear. It gives me great comfort to know that my thoughts and his are one and the same on this issue.

    I assure the noble Lord, Lord Mackie, that I am in no way frightened of the SNP. I have always maintained that most people vote for the SNP not for the independence of Scotland but because of the nationalism in the Scottish heart. I do not think that the situation would arise, but it was important for me to know that this parliament will work because the most important thing about the parliament is the unity of the United Kingdom. Taking assurance from the Minister, I beg leave to withdraw the amendment.

    Amendment, by leave withdrawn.

    Page 64, line 13, at end insert—

    ("(f) the continued existence of the House of Lords as a civil court of appeal.").

    The noble and learned Lord said: While we are taking that dramatic news on board, perhaps I may turn to Amendment No. 175 which raises, in a probing manner, an important point; namely, whether or not the Government accept that there should remain available as the ultimate civil court of appeal in Scottish cases the Appellate Committee of your Lordships' House.

    There are differing views as to whether or not that is a necessary implication from the Bill as drafted, in particular the provisions in Schedule 6 to which we shall turn in due course. Paragraph 32, dealing with proceedings in the House of Lords, may imply, if the Bill is enacted in these terms, that the House of Lords should remain available as an appellate court in civil matters albeit that it does not currently discharge such a function in criminal matters.

    There is also the practical implication which flows from that: that unless it did so, it is unlikely that any of the Lords of Appeal in Ordinary would be appointed from lawyers who were trained in the law of Scotland, had practised in Scotland as Scottish lawyers, and had sat in Scotland as judges of the Court of Session. Over the years the civil law of both Scotland and England has benefited from the fact that two members of the team of Lords of Appeal in Ordinary have by convention been Scottish lawyers. Good ideas have gone from both jurisdictions one to the other, and there is practical benefit from that. In the absence of such Scottish lawyers being Lords of Appeal in Ordinary, the possibility of that occurring might be diminished.

    This is an important issue which is causing a measure of interest in Scotland. It is not a matter I should like to press to a Division tonight, but I would be keen to hear the Government's thinking so that it can be considered by the Scottish legal profession over the Recess. I beg to move.

    This amendment raises important issues about the relationship between the House of Lords and the Scottish court system—a relationship in which the House of Lords is a well-established partner. The noble and learned Lord is concerned that the valuable role played by the House of Lords as a civil court of appeal should be protected. He raised a point about the continued presence of the Scottish Law Lords being protected.

    Before dealing with these matters, perhaps I could assist him in relation to paragraph 32 of Schedule 6, where reference is made to the judicial proceedings in the House of Lords. That could of course be a Scottish case, an English case or a Northern Irish case, so that nothing should be taken from that provision to indicate that there would be a continued role for the House of Lords, by implication. It is our intention—

    I thank the noble and learned Lord for giving way. I fully accept that the example I gave is not a very good one, but if one takes paragraph 13(b) in Schedule 6, again it has been suggested to me that its drafting, by implication, proceeds on the assumption that while this paragraph is dealing with a court of three or more judges of the Court of Session, from which there is no appeal to the House of Lords, there are other courts of three or more judges of the Court of Session where there is such an appeal. In view of the lateness of the hour I will not go through this line by line, but paragraph 7 on the same page is yet another example of where the drafting suggests, to some people at least, that the existence of the House of Lords as an ultimate court of appeal in civil matters might be inferred.

    I do not take that implication from these provisions either, but perhaps the noble and learned Lord and I can have a discussion outwith the Chamber about the niceties of the drafting and what the various provisions mean. It is our intention that the Scottish Parliament should be able to legislate on whether there should be an appeal to the House of Lords and, if so, in what cases: that is to say that the parliament should have the right to abolish the right of appeal in civil cases or to extend the right of appeal in criminal cases, if the parliament considered that to be appropriate.

    Given that the parliament would be free to legislate generally in respect of the civil and criminal legal system in Scotland, it would be nonsense to put beyond the legislative competence of the parliament decisions of what should be the ultimate court of appeal, either in the civil or criminal jurisdictions. This amendment seeks to deny the parliament that freedom to reach its own judgment as to whether it continues to make sense for the House of Lords to continue to act as the ultimate court of appeal in civil cases. I cannot see any good reason for such a step.

    I do not agree that there is a question of principle here. The question will only be whether the expertise and experience which the House of Lords can bring to an enormous range of complex cases continues to justify the continuation of its present role in the hearing of appeals. From the way I have expressed myself, I hope that the Chamber will understand that I would very much expect that the valuable role played by the House of Lords will continue to be recognised by the Scottish parliament but that we should not fetter the discretion of the parliament in that regard.

    The noble and learned Lord referred to the valuable role which the Scottish Law Lords have played and continue to play in the House of Lords. I acknowledge that unreservedly. However, if it were decided that the House of Lords should no longer be the ultimate court of appeal, there would still be Scottish Law Lords in the Judicial Committee of the Privy Council who would be able to deal with devolution issues. They would be those noble Lords who have held or hold high judicial office. Accordingly, members would be entitled to sit in the Privy Council.

    With that explanation, I invite the noble and learned Lord to withdraw the amendment.


    Can the noble and learned Lord give a clear reason in terms that a lay person can understand as to why the High Court of Justiciary as a criminal court of appeal appears in Schedule 5 paragraph 1, as does the Court of Session as the civil court of appeal, yet the Government propose to leave out the Lords of Appeal in Ordinary? That seems to me very odd. I wonder what the Government are up to!

    The noble Baroness, Lady Carnegy, asked perhaps a rhetorical question, wondering what the Government are up to. The Government are not up to anything, if the implication is that that is a sinister question. The position is that the Court of Session is the civil court of first instance and of appeal. At present, there is a further appeal to the House of Lords on civil matters. When it comes to criminal matters, the High Court of Justiciary sits as a court of first instance trying criminal cases in the High Court. However, it sits also as the appellate court, which is the final appeal court on criminal matters in Scotland.

    I sought to explain to the Committee that as the whole system of criminal and civil justice in Scotland is to be devolved as part of the responsibility of the Scottish parliament because of the separate system of law which we have in Scotland, it is appropriate that the parliament should decide what is the ultimate court of criminal appeal. As I indicated, it would be open to the parliament to decide that that could be extended to the House of Lords on criminal matters. Equally, as regards civil matters, it would be open to the parliament to decide that there should be no right of appeal from the Court of Session sitting as an appeal court. These matters are devolved to the parliament.

    As I indicated, I hope that the parliament would continue to recognise the invaluable contribution which noble and learned Lords have played and continue to play in the system of justice in Scotland.

    As I indicated when I moved the amendment, I do not intend to press it tonight. The noble and learned Lord said that it would be a nonsense to exclude the possibility of the Scottish parliament legislating to withdraw any rights of appeal to the House of Lords. Other people might think it a nonsense to leave that available as a possibility. However, I shall reflect carefully on what he said, as no doubt will many others, and we will see what amendments might be appropriate when we come to Report stage. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Page 64, line 34, at end insert ("or government department").

    On Question, amendment agreed to.

    [ Amendments Nos. 176 and 177 not moved.]

    Page 64, line 41, leave out ("and funding").

    The noble Lord said: This amendment looks at paragraph 6 of Schedule 5, which currently says:

    "The registration and funding of political parties is a reserved matter".

    I have no problem with the concept that the registration of political parties should be a reserved matter. In fact, we do not have registration of political parties, but, rather ironically, we are legislating here for a Bill that has not yet been passed and has not, as yet, appeared in this Chamber. Indeed, as I shall say when we come to deal with that Bill, it contains the pretty foreign concept of government registering political parties.

    Noble Lords who have heard me speak before on the matter will know that I have a fundamental dislike of such a policy because I believe that it has, as its implication, the fact that the Government or the registrar may not register political parties. As I think I said on an earlier occasion, if I were attempting to set up a dictatorship by stealth in this country, the first thing I would do is register political parties so that I might stop registering the ones I do not like. However, that is another argument with which we will no doubt deal in the over-spill.

    I am prepared to leave that reference in the Bill because I appreciate that it is tied up with the additional member system, although I do not believe that it is essential to it. However, I am concerned about the word "funding" in connection with political parties; indeed, I am concerned that the,

    "funding of political parties is a reserved matter".

    I do not quite understand what the Government mean by funding and that is the first thing that I hope they will explain to me. First, does it mean the question of who funds political parties; in other words, the kind of Neill Committee stuff, such as personal donations, business donations, blind trusts (which, I gather, are quite popular) or trade unions, and wherever political parties get their funds? Is that what the Government mean? Is that to be reserved?

    Secondly, is it a question of government funding of political parties in the other place—Short money? Or, indeed, in this place where I believe it is known as the "Cranborne" money? Is it to do with the money that political parties get in order to run their parliamentary offices? Thirdly, is it actually to do with the Government spending taxpayers' money by giving money to political parties in order to run campaigns? That is not something that we do in this country, but there are always people who like the idea and there may well be people in the Government who like the idea.

    The first thing I want to know is: what exactly does this funding question mean? Which of those three heads are we talking about? Alternatively, are we talking about all of them? If it is the Government actually funding the operation of political parties in the country, I am puzzled as to why that ought to be reserved. If it is government funding by way of the equivalent of the Short money, I cannot see why it should be reserved because if the Scottish parliament decided that it wanted to do a similar thing, then it ought to be a matter for that parliament to decide. If it is a question of who funds the political parties—a kind of Neill Committee point—then, again, I wonder why that should be reserved as far as concerns the Scottish political scene.

    It is not inconceivable that we may have a major political party in the Scottish parliament which may decide in the future that it does not actually wish to fight seats for the other place and, therefore, is not part of the other place. If we are serious about having this devolved parliament, with its responsibility—and we have heard enough about it being a responsible parliament—it ought to be able to deal with the question of the funding of political parties in a Scottish context for membership of the Scottish parliament and for elections to the Scottish parliament. Indeed, it ought to be able to deal with them without that matter being reserved to Westminster, which, I must say, looks very much like big brother looking over the shoulder of this parliament. I beg to move.

    I listened with interest to the noble Lord, Lord Mackay of Ardbrecknish, who spoke with his usual fluency and persuasiveness. The whole issue of the funding of political parties has become tainted and discredited in the recent past by allegations of sleaze, which have damaged the reputations of politicians generally. On these Benches we believe that all donations of £1,000 should be declared with the name of the donor and that there should be an annual restriction of £50,000 on the size of any donation by an individual or organisation.

    My noble friend Lord Razzall has put forward our proposals to the Neill Committee which is investigating these issues.

    On the face of it, this amendment is compelling for we have repeated consistently that we believe that as far as possible the Scottish parliament should make its own decisions over the way in which it conducts its own affairs. It should also be right for the parliament to decide whether or not Short money should be made available. It should follow that the funding of political parties in Scotland should be devolved. However, it is not entirely simple, for the funding of Westminster MPs will still be reserved to Westminster, including MSPs. With the exception of the SNP, political parties operate equally in Scotland and in the rest of the UK, and so it will be necessary to ring-fence one from another. It might be confusing and complicated at best to have different funding rules for Scotland and Westminster where the same party is concerned.

    It is clear that this is an issue that is more complicated than it appears on the surface and which cannot be dealt with simply by deleting the words "and funding". Under these circumstances therefore it might be better to leave the Bill as it is now and to revisit the issue when the Neill Committee has reported and its proposals can be considered. There will be legislation on party political funding in the light of the Neill Report and that will be the appropriate time to consider the whole question, including that of how best to address the issue of the devolution of the funding of Scottish political parties.

    As the noble Lord, Lord Mackay of Ardbrecknish, made clear, Amendment No. 178 would have the effect of deleting the reference to "funding" in paragraph 6 of Part I of Schedule 5. This would mean that legislative competence on the funding of political parties would be devolved to the Scottish parliament. The Government cannot agree to that approach. As we all know, the funding of political parties is a sensitive matter which is currently being considered by the Neill Committee. It is intimately linked to the conduct of elections and related matters. We believe it is important to ensure that it is reserved, as are other matters relating to the constitution and elections.

    I very much agree with the conclusions of the noble Baroness, Lady Linklater. Any legislation on the funding of political parties will be brought forward by my right honourable friend the Home Secretary in the light of the conclusions reached by the Neill Committee which is due to report in the Autumn. I expect that any legislation will apply in Scotland. It will clearly need to take account of the existence of the Scottish parliament and other devolved bodies.

    The noble Lord, Lord Mackay of Ardbrecknish, referred to Short money and asked whether the Scottish parliament could provide financial support to opposition parties in the parliament. The Government are sympathetic to the argument that some support needs to be provided to opposition groups to ensure that they can work effectively. The Scottish parliament could, through the SPCB, provide assistance in kind, such as property and staff where that is considered necessary for the purposes of the parliament, but as matters stand at present it could not provide financial support. However, this whole subject is under consideration by the Neill Committee and legislation on the matter would be better dealt with as part of that overall package. I suggest we leave this matter until the Neill Committee has presented its report. I urge the noble Lord to withdraw his amendment.

    I am not too sure whether I am much further forward, but I suppose I am a little further forward. It seems that the noble Baronesses, Lady Ramsay of Cartvale and Lady Linklater, are particularly interested in who funds the parties and the Neill Committee. I shall not go into that in any great detail but, frankly, I think the matter of who funds the parties in Scotland ought to be a matter for the Scottish parliament.

    I do not understand this obsession with waiting for the Neill Committee. The Bill is here before us setting out the position as regards devolution. We are told that it is the most important piece of legislation we have and the Government want to make it tidy and neat and yet we are to leave this bit kicked into the long grass, as it were, until the Neill Committee reports and until the other place legislates on this matter. If I tried that argument in relation to some other issues, I should be told that I do not believe in devolution. So I find it interesting that it is now being turned on its head and tried on me.

    At least it was interesting to hear, when we came to the second head I mentioned—namely the short money—that there seemed to be appreciation that it could be dealt with only in the Scottish parliament. However, I do not see how that could be the case if the funding of political parties is a reserved matter. My deep suspicion that this provision paves the way to the funding of political parties in their campaigning role was not addressed at all.

    It is late, and I do want to continue the argument. I am not satisfied. I wish to test the opinion of the Committee.

    12.15 a.m.

    On Question, Whether the said amendment (No. 178) shall be agreed to?

    Their Lordships divided: Contents, 18; Not-Contents, 37.

    Division No. 2


    Balfour, E.Park of Monmouth, B.
    Byford, B. [Teller.]Rowallan, L.
    Carnegy of Lour, B.Saltoun of Abernethy, Ly.
    Courtown, E. [Teller.]Selkirk of Douglas, L.
    HolmPatrick, L.Sempill, L.
    Mackay of Ardbrecknish, L.Skelmersdale, L.
    Mackay of Drumadoon, L.Stair, E.
    Montrose, D.Torphichen, L.
    Palmer, L.Weir, V.


    Alderdice, L.Hoyle, L.
    Brooks of Tremorfa, L.Linklater of Butterstone, B.
    Burlison, L.Lockwood, B.
    Carlisle, E.McIntosh of Haringey, L. [Teller.]
    Carmichael of Kelvingrove, L.
    Carter, L. [Teller.]Mackie of Benshie, L.
    Dean of Beswick, L.Mar and Kellie, E.
    Dubs, L.Monkswell, L.
    Ewing of Kirkford, L.Pitkeathley, B.
    Falconer of Thoroton, L.Ramsay of Cartvale, B.
    Farrington of Ribbleton, B.Rendell of Babergh, B.
    Gilbert, L.Sewel, L.
    Gordon of Strathblane, L.Smith of Gilmorehill, B.
    Grenfell, L.Steel of Aikwood, L.
    Hacking, L.Stone of Blackheath, L.
    Hardie, L.Thomson of Monifieth, L.
    Hardy of Wath, L.Thurso, V.
    Haskel, L.Whitty, L.
    Hayman, B.Young of Old Scone, B.

    Resolved in the negative, and amendment disagreed to accordingly.

    12.23 a.m.

    [ Amendment No. 179 not moved.]

    Page 65, line 5, at end insert—

    ("( ) "Assisting" in sub-paragraph (2) includes, where a Minister of the Crown deems it appropriate, attending with, and participating in, the United Kingdom delegation to any international forum, including the Council of Ministers of the European Union.").

    The noble Lord said: This is an important amendment to the schedule which deals with the reserved matters, in the section dealing with foreign affairs, in particular with the European Communities and their institutions, but also with other organisations, regulation of international trade—which I presume means organisations such as GATT—international development assistance, and so on. While all these matters are reserved, subparagraph (2) does not reserve obligations under the Human Rights Convention and under Community law. The second part of that subparagraph provides that subparagraph (1), which relates to the Community, regulation of international trade, and so on, does not reserve,

    "assisting Ministers of the Crown in relation to any matter to which that sub-paragraph applies".

    I am trying to put some flesh on the bones of what "assisting" means and therefore my amendment defines "assisting" as,

    "Attending with, and participating in, the United Kingdom delegation to any international forum, including the Council of Ministers of the European Union".

    While my argument is relevant for almost any international body, I want to make it in particular with regard to the European Union and the Council of Ministers. It introduces the important issue of the Scottish parliament—the Scottish executive—and its relationship to Europe and other international bodies, in particular to decision-making at the EU level, both at official and Council of Ministers level.

    I was surprised that this amendment was not grouped with other amendments to be moved later, but perhaps it allows me to make a speech tonight, to see how we get on, and we will come back to the issue later in the Committee stage. We addressed this issue at considerable length on the Government of Wales Bill. Frankly, the outcome was thoroughly unsatisfactory. It is best explained by looking at some of the matters which are devolved to the Scottish parliament—that is the important point—yet are largely determined at European level. The two that specifically concern me, and I expect concern other Members of the Committee, are fisheries and agriculture. They are important because the whole fisheries structure in the United Kingdom and in a devolved Scotland is only capable of working within the framework of the common fisheries policy. Equally, in agriculture the same is true. In agriculture the vitally important matters of price, support payments and so forth are all determined at Community level. In fishing, important issues like the total allowable catch and technical conservation measures are also determined at European level.

    The position therefore is quite clear: if the interests of Scottish farmers and Scottish fishermen are to be properly represented, we must look at how they are to be represented at European level. Currently the position is this. The Scottish Office, the fisheries Minister and the agriculture Minister—they happen to be here in the person of the noble Lord, Lord Sewel—discuss with their equivalents in MAFF matters of agriculture and fishing relevant to Community meetings and so forth. For some time I was the Scottish Agriculture and Fisheries Minister and therefore have first-hand knowledge. My noble friend Lord Lindsay, at Second Reading, made perfectly clear how it worked and what his anxieties were. I do not want to go over that in detail, but it is worth quickly recapping how it works currently.

    The officials in the two departments—whether it is fisheries or agriculture; that is, in MAFF and the Scottish Office—discuss what is coming up; what issues they want to raise and so forth. Often agreement is achieved at official level without Ministers meeting. But occasionally, and certainly on major issues—one of the major issues is certainly the annual December meeting of the Fisheries Council, and I know the Minister attended last December, where critical decisions are made for all the fishermen in the UK—Ministers meet to discuss what the policy ought to be and what lines they ought to pursue.

    Sometimes—it may not have happened last December—in my experience there are disagreements between Ministers and departments and they have to be resolved, usually by a sub-committee of the Cabinet. The Secretary of State for Scotland plays a vitally important role in that because, to my recollection, if it was a meeting in which I was involved as an Under-Secretary (no doubt the same is true of the noble Lord, Lord Sewel) one had to trot across to MAFF in order to have the meeting because the Minister at MAFF was a Minister of State, which at that time was a cut above myself; and even if the Secretary of State, the Minister for Agriculture, Fisheries and Food was involved, he was definitely a cut above me. But if it was a meeting at Secretary of State level, the MAFF officials had to troop across to the Scottish Office because the Secretary of State for Scotland is further up the pecking order than the Minister of Agriculture.

    So the Scottish position on agriculture and fisheries was clearly and importantly defined. When difficult and important decisions had to be made at Secretary of State level, they were often made in Dover House. If they went higher than that, they perhaps went to a Cabinet sub-committee. Then, having agreed all that, and sometimes quite easily, and more importantly having agreed a kind of shopping list of priorities—where we would give a little and where we would not give, and where we were prepared to trade, because that is what it comes down to in Europe—we all went off to Brussels, where we battled away. Indeed, Scottish Office Ministers sat alongside the MAFF Minister and took part in the discussions. On a number of occasions I took part on behalf of the whole United Kingdom because at that stage Michael Jopling, who is now my noble friend Lord Jopling, was the Minister, and he was in the chair. We were in the chair of the Council of Ministers and therefore I, so to speak, batted for Britain. That was easy to do because I was a member of the United Kingdom Government and I was answerable to the other place for my decisions; to people, whether they were in Wales, Northern Ireland, England or Scotland.

    The fact of the matter is that, often in the middle of the night, complicated deals had to be put together and some quite difficult decisions had to be made about what was acceptable and what was liveable with in exchange for whatever we really wanted as a higher priority. I have no doubt that that has not changed. In fact, my noble friend Lord Lindsay, who was in that position until very recently, confirmed it at Second Reading. Then we returned to the United Kingdom and we reported to the other place—and to this place if a Statement was requested—and we answered to all the Members of Parliament of the United Kingdom. That was the position.

    What really puzzles me is what will happen now. I can appreciate that officials can discuss the matters. I can appreciate that Ministers in Edinburgh and the Minister at MAFF can discuss these matters. I am not entirely sure how they will resolve internal disagreements between them; but that is really my first question.

    My second question is: how will they resolve the so-called wish list that Ministers always have when they go to Brussels? Furthermore, who will go to Brussels? Will the Scottish Minister go? Will he send his officials? Will he be allowed into the Council chamber, or will he just be in the interesting little suite of offices that the United Kingdom delegation has? I suppose that it would be something if he were there because he would at least be taking part in the discussions in the middle of the night.

    When it comes to coming back here, who will report, and to which parliament? How will collective responsibility operate if the Scottish Minister is not too pleased about the decisions that have been made? The White Paper was perfectly clear that in some magical way, even though he was not a member of the Government of the United Kingdom, collective responsibility would be all-embracing. That is an interesting concept which I suspect will break down in the real political world when everyone in the Scottish parliament is shouting at the poor man for the decision he took in Brussels and he is having to defend a collective decision taken, frankly, by another government. So that is difficult.

    Then, what do the Scottish Ministers do? There was a great pretence during the referendum that Scottish Ministers could represent the United Kingdom. I found that impossible to believe. How can they, as they cannot speak for any part of the United Kingdom other than Scotland and they are not Ministers of member states?

    We have asked often for the Government to give us some examples because over 18 years none of the Ministers in the previous administration was ever conscious of anyone being at the table of the Council of Ministers who was not actually a Minister of a member state. We were never conscious of a Minister of any provincial parliament—or länder in the case of Germany—being at the table. Therefore, during the proceedings on the Government of Wales Bill, in order to help, I demanded examples.

    The examples I received were contained in a letter from the noble Lord, Lord Williams of Mostyn. Perhaps I may read it out. It states:

    "The more obvious instances which have been identified relate to the German Länder. Because of its particular expertise, Bavaria, for example, has represented the German government at EU meetings where cultural issues have been the main agenda item. Similarly, members of the Catalan autonomous government have attended meetings on behalf of the Spanish, where language issues were under consideration. I trust this information goes some way to removing your scepticism that in practice it would not he possible for an assembly member to be part of a UK government delegation, nor indeed to lead such a delegation, if that was the view reached by the UK government".

    If that was supposed to bring comfort and bring the fishermen and farmers of Scotland comfort, it is certainly pretty cold comfort. Cultural and language matters may be very important, but they are not the subject of European legislation and rules and regulations in the same way as farming and fishing. To compare the two appears to me to be unbelievable. If that is the best that the Government can do, I suggest that they try to re-think this whole issue.

    My suggestion here is to try to put into the Bill what "assisting" means. It is attending and participating in any international forum, including the Council of Ministers and the European Union. We shall return to this in connection with other amendments, including Liberal Democrat amendments, which I shall discuss when we get there.

    If this kind of thing does not go into the Scotland Bill—my goodness, the Ministers involved with the Welsh Bill resisted it all the way—I am left with a suspicion that I and all my noble and right honourable friends who have attended Council of Ministers meetings over 18 years are right and what we have from the Government is just a smokescreen to cover the fact that on vitally important issues such as farming and fishing, where the decisions of the European Council of Ministers actually impinge on the living of farmers and fishermen in Scotland, Scotland will have to make do with concordats and being allowed into the chats; perhaps being allowed to see the wish list, and maybe just being allowed into the ante-room during the night, but, frankly, never being at the Council table.

    The fishing industry is concerned about this. In a note to all parties recently, the Scottish Fishermen's Federation described the Government's policy like this:

    "there is a large element of 'suck it and see' over what will happen in practice when Devolution comes to pass. In recent weeks the Federation has gone to considerable lengths, without success, to obtain assurances that the negotiating position of the Scottish Fishing Industry will not be diminished, as we fear, under the new constitutional arrangements in which the Scottish Fisheries Minister will come from a Scottish Parliament and will be subject to the over-riding competence of a MAFF minister from the United Kingdom Parliament, with this relationship governed only by a non-binding Concordat; our view quite simply is that the position of Scotland must rather be enhanced in the new context, and we see no evidence of that in prospect, and rather fear the contrary".

    It goes on to talk about,

    "an inherent contradiction between relationships with the EU as a reserved power and fisheries as a devolved matter. The federation remains deeply concerned over the prospect of the status of the Scottish Fisheries Minister being downgraded from his present Constitutional right of access to, and involvement in, the decision-making process".

    That encapsulates it.

    I know enough about newspapers to know that I should not believe entirely everything I read in them. But in the Scotsman on Friday, 9th January this year, it was reported that the Government are proposing to allow MAFF to veto policies of the administration in the Scottish parliament. I presume that meant over European matters. In reality that is what will happen. MAFF is the powerful ministry; it has the Gatling gun; it is the United Kingdom Parliament; and its Ministers will be representing the United Kingdom. Frankly, if there is a conflict, let us say on fishing, between the interests of the Devon and Cornwall fishermen and the South-East and South-West of England and the fishermen of the northern North Sea and the MAFF Minister (man or woman) who makes the decision, Members of the Committee do not have to be up late at night or get up early tomorrow morning to work out which view will prevail.

    I am deeply and genuinely concerned about the fishing industry. I am also genuinely concerned about the farming industry, and I know that many farmers are as well. I have rather heavily used the example of the fishing industry because 70 per cent. of the UK fishing industry is in Scotland and it is much more Scottish-driven than agriculture.

    Many farmers are concerned. The NFU does not seem to mind, but, frankly, I believe that its leadership has a political agenda regarding this parliament which perhaps takes priority over looking after the interests of farmers into the future and safeguarding their position when the Scottish parliament comes about. That is certainly the view of a number of farmers to whom I spoke earlier today. I am afraid that the NFU's silence on this is more a refection on the NFU. The fishermen's federation is not opposed to the parliament. It accepts the will of the Scottish people, as I do, but it wants to be assured that the lines of communication and responsibility are very clear and that "assisting" at least means what my amendment suggests. I beg to move.

    As the noble Lord indicated, my noble friends have tabled several amendments on this subject which will he debated later. Therefore, given the late hour, I do not propose to address them now, but reserve powder for later. Perhaps we might even have that debate before six o'clock in the evening.

    Perhaps we should remind ourselves what the amendment is about. I freely acknowledge the interest in, knowledge of and commitment to the Scottish agriculture and fishing industries of the noble Lord, Lord Mackay of Ardbrecknish. His record speaks for itself. He treated us to a wide-ranging exposition of the Scottish fishing industry and in particular the relationship within the UK between MAFF Ministers and Scottish Office Ministers, and postulated what may happen in the future. That is a legitimate area for discussion and debate, but it does not relate all that closely to this amendment which is about defining the word "assisting". The amendment does not deal with the wider matters on which the noble Lord touched, but, as I understand it, tries to add to the definition of "assisting" and the various actions that the word "assisting" could be taken as encompassing.

    I understand where the noble Lord is coming from with this amendment. Both he and I know the importance of attendance and participation by Scottish Ministers in EU Councils, but the amendment is unnecessary. It serves no purpose.

    As the Bill stands, this provision is widely drawn and that is quite deliberate. We do not wish to limit the scope for Scottish Ministers to contribute to EU and other international discussions, subject of course to the agreement of their UK ministerial colleagues. The word "assist" has a wide and general meaning and I can assure the noble Lord that it certainly encompasses attendance at, and participation in, UK delegations. From the wording of the amendment, that seems to be the noble Lord's point.

    The problem with this amendment is that it seeks to define one aspect of "assistance", but by doing so—I enter this note of caution strongly—invites questions about what else might or might not be included. That may be a legalistic point, but it is a complication we can probably do without because subsequent interpretation may be that "assist" is limited to the points which the noble Lord defines in his amendment. We want a much wider definition.

    The points that the noble Lord makes in his amendment, if not his speech, are encompassed within the wider but not specifically defined meaning of "assist". We have made clear consistently that Scottish Ministers and officials of the Scottish Executive will be closely involved in all stages of the negotiations after devolution, just as they are now. Provision is made for that in the Bill as it stands. I genuinely do not believe that in terms of the amendment and the Bill as drafted there is anything between us. The danger is that by trying to define "assist" we shall narrow the meaning. We believe that it is better to keep it as broad as possible. With that explanation, I hope that the noble Lord will feel able to withdraw his amendment.

    12.45 a.m.

    I am aware that perhaps I ranged a little wide at the beginning, but I needed to show how the present situation worked, the interaction between departments and Ministers with regard to Council of Ministers meetings in Europe and the interaction following devolution. I appreciate the noble Lord's comments. I thank him for accepting that it is a subject about which I am legitimately concerned. I am rather surprised that the Liberal Democrats managed an intervention on the important subject of farming and fishing that I almost missed. I do not suppose that that will be lost on farmers and fishermen later today.

    I thought that I was perfectly clear in what I said. We have an amendment that deals with these matters at a later stage. We keep our powder dry to deal with it at that point.

    I advise the noble Viscount that he would be wise to take his chances when they do arise and not wait until they may arise in future.

    We have had an interesting debate. I appreciate that I have narrowed down "assist". The word is quite narrow to start with—far narrower than I would have wished—but this is the first opportunity that has arisen to deal with the issue. Given the noble Lord's understanding of the problem and my attempt to find a solution in legislation that protects the important interests of farming and fishing in the Council of Ministers—although there will be other devolved issues of lesser importance (who knows how Europe will develop in future), currently farming and fishing are the two major matters—I was surprised that the amendments were demerged earlier today. But when we return to this matter perhaps I shall have an opportunity to explain to a fuller Committee how the system has worked in the past and how it will work in future. I look forward then to Liberal Democrat support on behalf of farmers and fishermen in Scotland. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Page 65, line 25, at end insert—

    (" Customs and Excise

    . Control and interception of imported substances and protection of coastal waters are reserved functions.").

    The noble Earl said: Amendment No.180 is patently a probing amendment. I am so concerned about the availability of illegal drugs all over the country that I believe Customs and Excise should be involved under Schedule 5 in the interception of imported substances and the protection of coastal waters. It is unfortunate that in the past few years the Coastguard appears to have had its functions and duties very much reduced. I hope that the Government will take this matter seriously. I want to see every effort made and no expense spared in trying to prevent the importation of illegal drugs and so on. I beg to move.

    We fully accept the importance of ensuring that in all parts of the UK there is a common system to govern the import of illegal drugs and drug trafficking. That is why the Bill already reserves (in Head 2, Section 1) the criminal law in relation to drugs, including the possession, supply and import of drugs and drug trafficking. There is therefore no need for the further reference to imported substances in this amendment.

    I can also assure the noble Earl that the Bill already provides (in Head 3, Section 5) for the reservation of the control of the import, export and carriage of goods. Powers to prohibit or regulate the movement of goods to or from the UK, or specified parts of the country, and to make provision to enforce such regulations, including penal sanctions and seizure of goods, will therefore be reserved. There are some minor exceptions to that reservation but those are mainly for the purposes of protection of human, animal or plant health, animal welfare or the environment or observing or implementing obligations under the common agricultural policy.

    I would also point out to the noble Earl that Section 1 of Head 1 makes it clear that taxes and excise duties are reserved. I hope that what I have said reassures the noble Earl that the Bill already makes adequate provision as respects the control of drugs and the activities of HMCE and that he will be content to withdraw his amendment.

    I am obliged to the noble Baroness for that explanation. I am happy to withdraw the amendment.

    Amendment, by leave, withdrawn.

    House resumed.

    House adjourned at eight minutes before one o'clock.